“Whistleblowing” new regulations and new obligations for employers. Where to start? (AIDP, 5 September 2023 – Stefania Raviele, Martina De Angeli)

After a long wait and several postponements, on 25 March 2023 Italian Legislative Decree no. 24 of 10 March 2023 (the “Decree”) was published in the Italian Official Gazette no. 63 of 15 March 2023. With the Decree the Italian legislator implemented Directive (EU) 2019/1937 “on the protection of persons who report breaches of Union law and laying down provisions concerning the protection of persons who report breaches of national legal provisions” (also known as the “Whistleblowing Directive”. Hereinafter, for the sake of brevity, “Directive”).

What is meant by the term “reporting person” or “whistleblower”? 

The term “reporting person” or “whistleblower” refers to the person who, in the general interest, reports unlawful conduct of which he or she has become aware in a work-related context.

It is worth making it clear from the outset that complaints of a personal nature that relate exclusively to individual employment relationships, the protection of forensic and medical professional secrecy and of the decisions of judicial bodies are not the subject of reporting, and therefore remain excluded from the scope of the legislation.

The protection measures for whistleblowers apply not only to employees and collaborators but also to apprentices, the self-employed, freelancers and consultants, volunteers and paid or unpaid trainees, shareholders, those who exercise functions of administration, management, control, supervision or representation (including if exercised on a de facto basis) and to anyone working under the supervision and direction of contractors, sub-contractors and suppliers.  

Protection must also be guaranteed even when the employment relationship has not yet been established – if the information was acquired during the selection process or in any case in the pre-contractual phase – during the trial period or after the termination of the relationship, where information on possible breaches has been acquired during the relationship.

Measures of protection also extend to the so-called “facilitators”, i.e. those who assist the worker in the reporting process, to persons who work in the same work-related context as the whistleblowers and who are linked to them by a stable emotional or family bond within the fourth degree, to the whistleblower’s work colleagues who work in the same work-related context and have a recurrent and ongoing relationship, or to entities  that the reporting persons own, work for or are otherwise connected with in a work-related context.  

Which private sector parties have to apply the new provisions and when will they take effect? 

The new provisions: 

• apply to private sector entities that in the last year: 

1. employed an average of at least 50 workers with permanent or fixed-term employment contracts;  
2. have adopted an Organisational and Management Model provided for by Italian Legislative Decree no. 231/2001 (“OMM”) – even if they employed fewer than 50 workers – or  
3. operate in sectors regulated at European level (e.g. financial or credit markets). 
4. they will take effect from:  
5. 15 July 2023 for private entities with 250 or more workers;  
6. 17 December 2023 for companies that have employed an average of up to 249 workers, as well as for those that have adopted an organisational and management model provided for by Italian Legislative Decree no. 231/2001. 

How can reports be made? 

Reports can be made through: 

• internal reporting channels. After consulting the trade unions, private sector entities should put in place internal reporting channels that ensure the highest level of confidentiality of (i) the identity of the reporting person, (ii) the person involved and mentioned in the report, and (iii) the content of the report and related documentation. Entities who have employed an average of 249 workers in the last year can share internal reporting channels. Internal reports can be made in written or oral form (through telephone lines or voice messages) or, on request, through a direct meeting. 
• external reporting. The task of setting up and managing the external reporting channel is entrusted to the Italian National Anti-Corruption Authority (Autorità Nazionale Anticorruzione, ‘ANAC’) which, within three months of the entry into force of the Decree, will have to adopt specific guidelines but has already made the channel available on its institutional website. The use of an external reporting channel is envisaged if (i) in the work-related context of the whistleblower there is no obligation to activate an internal channel, or there is an obligation but the channel is not active or, if active, is not compliant; (ii) the whistleblower has already submitted a report through an internal channel but the report has not been acted upon; (iii) the whistleblower has reasonable grounds to believe that reporting through the internal channel will not be effective or may result in the risk of retaliation or (iv) in the event of imminent or obvious danger to the public interest. 
• public disclosures that can be made through the press or electronic or dissemination media that can reach a large number of people. 
  
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