More protection for whistleblowers in Italy22 November 2017
This is a reproduction of an article first published here (click link).
A new regulation protecting whistleblowing both in public and private sectors has been introduced in the Italian legal system . On November 15 the Italian Parliament approved a new statute (composed by 3 sections) which protects public servants and private-law employees who report unlawful activities known for work reasons.
The public sector
Section 1 modifies sec. 54-bis of the 'Testo unico del pubblico impiego' (Legislative Decree n. 165 of 2001), which some years ago already introduced a first set of protection measures for public servants reporting unlawful activities.
First of all, the new regulation establishes that who (the whistleblower), in the interest of the honesty of the Public Administration, reports
- to the manager responsible for the prevention of corruption in the public entity where he/she works; or
- to the Italian National Authority anti-corruption (ANAC); or
- to the ordinary or accounting judicial authority,
any unlawful conduct or misconduct that he/she has become aware of as a result of his employment relationship cannot be - for reasons connected with the reporting - subject to penalties, demoted, dismissed, transferred or subjected to other organizational measures that have a negative impact on his/her working conditions.
Adoption of discriminatory measures should be communicated by the interested person or the trade unions to ANAC, which in turn communicates it to the 'Dipartimento della funzione pubblica' and to other competent public bodies.
In such cases, ANAC may impose fines (from €5,000 up to €30,000), subject to the other liability profiles. In addition, ANAC can apply administrative sanctions (from €10,000 up to €50,000) to the person responsible for not conducting the verification and analysis of the received reports. The sanction measure takes into account the size of the Public Administration.
It is then the Public Administration to have the burden of proving that discriminatory or any other measure taken against the reporter/whistleblower are motivated by reasons beyond reporting.
Discriminatory or retaliatory acts adopted by the Public Administration are, however, null and void. A fired whistleblower is entitled to reinstate the workplace and to compensate for the damage.
However, the protection is not guaranteed in the case where the criminal liability of the reporting person (or his civil liability) has been established for offenses of slander or defamation or in any other criminal offense committed with the report.
The private sector
Sec. 2 of the new statute extends to the private sector the above illustrated protection system.
Sec. 2 modifies Sec. 6 of Legislative Decree 231 of 2001 on the "Corporate Responsibility of Companies" with regard to the organization and management models of the company aimed at crime prevention.
In particular, three new paragraphs are added to Sec. 6 providing:
- the company shall set (whithin the framework of the company's models aimed at crime prevention) one or more "reporting channels" that allows to the people that directs the company to file (in order to protect the integrity of the company) circumstantial reports of illegitimate behaviors; such channels shall guarantee the confidentiality of the whistleblower;
- the company shall set at least one alternative "reporting channel" suitable to guarantee, by computer, the confidentiality of the whistleblower's identity;
- the prohibition of acts of retaliation or discrimination, direct or indirect, against the reporting person for reasons connected, directly or indirectly, to the reporting;
- sanctions against those who violate protective measures of the reporting person;
- sanctions against those who with gross negligence or fraud file reports unlawful conducts that are revealed to be unfounded;
- that the adoption of discriminatory measures against reporting employees may be subject of complaint to the National Labor Inspectorate;
- the nullity of the repressive or discriminatory dismissal of the whistleblower. Any change in duties or any other retaliatory or discriminatory measure taken against the whistleblower are also null and void. As in the public sector, it is the employer's burden to show that the adoption of such measures are not a consequence of the employee's report.
Sec. 3 of the new statute introduces as a right cause of disclosure of office secret, professional secret (sec. 622 Italian Criminal Code), scientific secret as well as for the breach of the obligation of loyalty to the entrepreneur, the persecution (by the public servant or private employee who reports unlawful acts and/or activities) of the interest in the honest conduct of Public Administration or private companies and the prevention and repression of embezzlement.
The right cause is deemed to be present if there is a preeminent interest (in this case, the interest in the honest conduct of the Public Administration or the private company) which imposes or permits such revelation.
Instead, the revelation in excess of the purpose of eliminating the offence is deemed violation of the secret obligation. In these cases, therefore, the right cause is no longer considered existing and there is a case of crime deriving from the disclosure of the secret.
For further information, contact :
Prof. Avv. Raffaele Torino, Partner
Bussoletti Nuzzo & Associati
t: +39 (06) 47825044