Whistle-blowing has been widely recognized as playing a crucial role in the fight against fraud, corruption, mismanagement, and other crimes in the workplace. Italy has implemented whistle-blowing laws in the public and private sectors, however, they are far from being real instruments to detect crimes. The reasons for such poor results, especially in the workplace, include the lack of clear and effective protection mechanisms for the whistle-blower.
Whistle-blowing is ruled by Law no. 190/2012, with reference to the public sector, and more recently by Law no. 179/2017, which amends the provisions set forth by Legislative Decree no. 231/2001 for the private sector and earlier public- sector provisions.
Both regulations aim to protect employees and collaborators who anonymously report offenses or acknowledge unlawful conduct of which they became aware due to their position or in the context of their employment relationship.
In particular, with reference to the public sector, Law no. 179/2017 provides that “the public employee who reports, in the interest of the public administration’s integrity, to the Anti-Bribery and Transparency Officer, to the National Anti-Corruption Authority (ANAC), to judicial or accounting authorities, wrongdoings he became aware of by reason of employment shall not be sanctioned, demoted, fired, transferred or subject to other organizational measures having negative effects, direct or indirect, on work conditions due to the report.” Moreover, confirming the previous regulation, the law establishes that the whistle-blower’s identity must not be revealed, discriminatory and retaliatory measures against the whistle- blower are prohibited, and that there is a reversal of the burden of proof. The law also introduces administrative pecuniary sanctions in cases where the whistle- blower’s protections were violated.
With reference to the private sector, the law provides that a mandatory reporting system for the protection of whistle- blowers must be included in a company’s organizational model and consist of one or more channels that allow employees to report relevant unlawful conduct or compliance violations, with precise and consistent evidence. In order to protect the whistle-blower, the company has to adopt measures aimed to ensure the confidentiality of the reporter’s identity and provide “an alternative channel” for whistle-blowing, along with disciplinary sanctions against “anyone who violates measures in place to protect whistleblowers” and “anyone who performs, with intent or gross negligence, groundless reports” or carries out retaliatory or discriminatory acts against the whistle-blower for any reason, directly or indirectly.
Companies, even if they belong to international groups, must update and integrate the compliance programs already adopted pursuant to Legislative Decree no. 231/2001, with the reporting system set forth by Law no. 179/2017. They must define specific training programs on reporting (content, limits and methodologies). In the case of reporting, companies must verify and ensure that the personal data of both the reporter and the accused party are processed in compliance with the privacy legal framework set forth by the Italian Privacy Code (Legislative Decree no. 196/2003) and by the General Data Protection Regulation no. 2016/679 (GDPR).
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.