Whistleblowing: Protecting employees reporting unlawful conduct

What’s new?

Private sector employers are required to update their ‘organisational model’ in place pursuant to Legislative Decree 231/2001 so that the model ensures:

1. There are one or more channels for employees and all personnel to report unlawful practices.  Any such disclosure must be based on specific and objective information.  Employees will also be protected if they wish to report breaches of the company’s organisational model that they discovered through their position at the company.  Said channels (at least one must be electronic) must safeguard the identity of the whistleblowing employee, especially in small organisations.
2. An employee who makes a protected disclosure must not be (directly or indirectly) subject to retaliation or discrimination for having made the disclosure (such as dismissal or demotion).  Any discrimination relating to making protected information disclosures may be reported to the Labour Office by the relevant employee and/or by the Trade Unions. The company is of course entitled to safeguard their rights in the event of a false disclosure by an employee, who would incur civil/criminal liability in said case.
3. Disciplinary sanctions for breaching the whistleblowing protection rules, and for gross negligence and wilful misconduct for employees who deliberately make false disclosures.  Note that anonymous disclosures are not permitted.  

What does this mean in practice?

Under the new whistleblowing law, the employer is prohibited from dismissing an employee or from making a discriminatory or retaliatory change to their position or tasks and duties as a result of them making a protected disclosure.

If an employer does take action against a disclosing employee (e.g. disciplinary action, demotion, dismissal, transfer) then the employer has the obligation to prove that said action was unrelated to the information disclosure by the employee.

In unfair dismissal litigation, if an employer fails to provide said evidence, employees are entitled to reinstatement (including employees employed under the ‘Jobs Act’ who would ordinarily not be entitled to reinstatement). 

Suggestions

Given the potential repercussions detailed above, it is advisable to:

1.  implement a robust whistleblowing policy or update the existing policy, so it properly regulates the process for employees wishing to make disclosures and outlines the protection they are afforded. The policy should also emphasize employee's obligations (e.g. no anonymous disclosures, relying on objective information/facts and not making false or retaliatory disclosures); and
2. Update the company’s organisation model accordingly to ensure compliance with this new law and its requirements.