After more than a year of parliamentary debate, a new whistleblowing law has been passed in Italy. The law introduces protections particularly for public servants and employees of companies that are publicly owned or supply to the public sector. Private companies that operate a “Model 231” programme will need to make changes to incorporate protections for whistleblowers.
Law 179/2017, “Provisions for the protection of persons sending communications of crimes or irregularities of which they have become aware within the ambit of an employment relationship in the public or private sector” came into force on 29 December 2017 and is referred to as the “Whistleblowing Law”.
The new law, amending some existing legal provisions in the public and private sectors, grants an express protection to employees, top managers and collaborators who report misconduct that they discover within the work place while performing their services.
Whistleblowing in the public sector
The Anticorruption Law 190/2012 had already introduced protections for civil servants who report or denounced misconduct discovered while performing their services. The Whistleblowing Law amends and increases those protections by strengthening their scope.
Firstly, the existing protections provided for all public servants have been extended to employees of publically owned private companies (società private sotto il controllo pubblico) and economic public entities (enti pubblici economici), as well as to all employees and collaborators of private companies supplying goods or services and carrying out works for public entities.
Protections for whistleblowers have further been strengthened by prohibiting the application of sanctions or demotions, dismissals or the subjection of whistleblowers to organisational measures having any negative effects, direct or indirect, on their working conditions, because of the whistleblowing. Any such measures, if adopted, will be considered null and void and in the case of a dismissal, the whistleblower must be reinstated.
Where there have been retaliatory or discriminatory measures against the whistleblower, the relevant employee or the union can notify the Anticorruption Authority (ANAC) so that it can evaluate the violation of the whistleblower’s right and if necessary inform the relevant authorities and/or adopt sanctions against the employer.
The Whistleblowing Law provides that where there is a complaint, the public entity employer must prove that the adopted measures are not discriminatory and retaliatory, but are due to external reasons not linked to the whistleblowing.
In any case, protections provided for whistleblowers do not apply to reports that are slanderous or defamatory, or those that result in a finding of the whistleblower’s civil liability in case of wilful misconduct or gross negligence in making such reports. In the absence of good faith, the whistleblower might also be subject to dismissal without notice.
The new Whistleblowing Law does not provide for confidentiality regarding the identity of the whistleblower, but sets out precise rules to limit and delay the disclosure of the identity of the whistleblower within the criminal, civil or disciplinary proceedings which might be started as a consequence of the report/whistleblowing. The Anticorruption Authority is expected to issue guidelines in the near future with the aim of granting confidentiality on the report/whistleblowing during the different phases of those proceedings.
Whistleblowing in the private sector
The Whistleblowing Law introduces a real innovation in the private sector providing for certain mandatory requirements on whistleblowing for those companies which have chosen (or choose) to implement an Organizational Management and Supervisory Model in line with Legislative Decree 231/2001 (so called “Model 231”).
Model 231 consists of a complex compliance programme to prevent the commission of a long list of crimes. Its adoption is not mandatory for the majority of companies but represents a strategic choice: having an effective Model 231 in place can exclude corporate liability for those crimes committed by the relevant persons (members of the top management and of the staff, external or occasional collaborators, including any persons subject to the management or supervision of the top management) in the interest and to the advantage of the companies themselves.
The Whistleblowing Law has introduced an amendment to Legislative Decree 231/2001, providing the need to introduce in the Model 231 one or more channels of communication that allow the Model 231’s addressees to present, so as to protect the integrity of the company, detailed reports of unlawful conduct relevant for the purpose of Legislative Decree 231/2001 and or of violations of the Model 231 of which they have become aware as a result of their employment. The report must be based on precise and consistent factual elements.
These communications channels must guarantee the confidentiality of the whistleblower in the management of the reports and, additionally, at least one alternative reporting channel must be provided to guarantee – using IT-based methods – the confidentiality of the identity of the whistleblower.
The Model 231 must also prohibit acts of retaliation or direct or indirect discriminatory actions against the whistleblower for reasons connected to the report/alert itself.
Sanctions must be introduced in the disciplinary system adopted with the Model 231, both for those who violate the measures to protect the whistleblower, as well as for whistleblowers themselves who make malicious or grossly negligent reports that prove to be unfounded.
The Whistleblowing Law also provides a specific protection for the whistleblower in the private sector. In particular, discriminatory measures can be notified to the Italian Labour Authorities (“Ispettorato del Lavoro”) and to the relevant trades unions.
Furthermore, discriminatory redundancies, changes of tasks and any discriminatory measures adopted against the whistleblower will be null and void unless the company is able to prove that they are in no way related to the whistleblowing activity.
What should businesses be doing about this?
In the light of the new law, it will be necessary to draw to the attention of all company management the opportunity to update the Model 231 (if already adopted) to implement and integrate it with the introduction of a regulatory system capable of internally regulating the whistleblowing mechanism in compliance with the new legislative provisions described above.