An employee, in learning or discovering unlawful acts by reason of his employment relationship, would be unlikely to report these violations: indeed, in such a case, a worker might be subject to reprisals or even be fired. This could happen both in the private and the public sector, however, episodes of corruption are unfortunately common. Therefore, on November 15th, a new policy establishing a comprehensive protection system for the employees who report such violations was approved, aimed to bring an end to these unlawful acts and, at the same time, protect the employees from being subject to reprisals by the injured employer (the “whistleblowing law”).
In more detail, regarding the public sector, the new law provides that whistleblowers who report to the judicial (or financial) authority or to the anti-corruption officer of the involved administration unlawful conducts (e.g. corruption) or violations, known by their employment relationship, cannot be fired, demoted, moved, nor be subject to other organizational measures having an overall negative effect on work conditions.
Furthermore, the public administration involved has the burden to proof that the discriminating or retaliatory measures it adopted towards the employee have been taken for reasons not related to the employee’s report. In the contrary case, such measures would be null and void and, in case of dismissal, the employee would have right to be reintegrated into the workplace and to be compensated for damages.
However, should the employee’s liability be ascertained because of a false or specious conduct, the aforementioned guarantees would not apply. Moreover, the employee who reports a false violation will bear civil liability in case of wilful misconduct or serious negligence, and criminal liability in case of slander, defamation, or anyother criminal offence committed by means of the false report.
In order to protect the employee reporting violations, it is foreseen that the identity of the whistleblower should remain confidential. Only in case of criminal proceedings, a limitation applies: the name of the reporting employee can be disclosed after the preliminary investigations are concluded. The anti-bribery and corruption authority (ANAC) will release guidelines on the presentation and handling of reports, also favoring the utilization of cryptographic systems for the report and the attached documents, in order to guarantee that the identity of the whistleblower remains undisclosed.
The whistleblowing policy applies to the employment relationship with every public administration, including: economic public bodies; private organizations under public supervision; corporations supplying goods and services to public institutions. Moreover, it can also be applied to the private sector, as companies, in adopting an organizational model in accordance to the provisions of the Legislative Decree 231/2001, should also include in that model specific reporting channels (one of which should be computerized) for employees to report violations they discover by reason of their employment relationship. Private employees who make reports through these channels are therefore guaranteed in the same extension of public workers, e.g. against dismissals or for any discriminatory measure.
For further information on the whistleblowing policy, please do not hesitate to contact us via info@dandreapartners.com.
