The report of offences and irregularities in the working environment: the new law on the so-called whistleblowing

18 May 2018

With Law n. 179/2017, the Italian legislator modified the regulation regarding the safeguard of individuals who reports offences or irregularities they came aware in performance of their private or public working relationship, generally known as “whistleblowing”.

The main principles regulating whistleblowing are the same for public and private sector.

The reporting individual’s identity cannot be revealed and the activities related to the report should be kept confidential.

The individual that reports offences or irregularities benefits of protection rules related to the working relationship. The regulation prevents from dismissal, professional deskilling, transfer and the undergoing of any negative consequences directly or indirectly related to the report. It is also forbidden to adopt any retaliatory or discriminating measure against the reporting individual.

Moreover, in case of litigations regarding retaliations against the employees reporting irregularities, the burden of proof lies with the employer, who shall demonstrate that the adopted measures were based on reasons not related to the report.

The reporting individual’s safeguards do not apply in case the individual carried out unfounded reports intentionally or by gross negligence, or when the individual’s criminal liability for calumny or defamation is verified by the Court.

The Law n. 179 establishes that – in case a private or public employee reports offences or irregularities, with ways not exceeding the purpose of eliminating the irregularity and by means of the dedicated communication channel – the reporting individual can reveal information covered by professional, business, scientific or industrial secret and, with reference to the employment relationship, the report could not be considered as violation of the employee’s duty of loyalty towards his employer. Therefore, disciplinary, civil and criminal liability of the employer making reports that entails violation of the above-mentioned duties is excluded.

With specific regard to the private sector, Law n. 179 has modified the legislative decree n. 231/2001 concerning the corporations’ administrative responsibility arising from crimes, inserting in article 6, that concerns the organizational and management model aimed at crimes prevention, the regulation of whistleblowing.

The modified decree n. 231/2001 states that, in the event of adoption of an organizational and management model, it is mandatory for the company to create one or more proper channel to report offences or irregularities, that grants the confidentiality of the individuals in all activities related to the report, moreover at least one of this channel should be a computerized one. The unlawful conducts mentioned in the rule, are the relevant one under decree 231/2001 based on precise and consistent facts, and violation of the organizational and management model.

The model should also set up a sanction system in the event of violation of the reporting individual’s safeguards, as well as towards the individual who carry out unfounded reports intentionally or by gross negligence.

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Copyright 2021 Corno – Centro Terziario Avanzato s.r.l.
P.IVA 00947490967 | Capitale sociale: 100.000€ | C.F. 09206750151 | REA 1285358