Whistleblowing within private employment (Il Giornale di Vicenza – Idea Impresa, 30 May 2018 – Vittorio De Luca, Lucio Portaro)

Law No. 179/2017 has introduced the whistleblowing institution within private employment. As is well-known, this is not a totally new institution for our legal system, since it had already been introduced for the public sector only by Law No. 190/2012, which amended article 54-bis of Legislative Decree No. 165/2001. The new law provision is aimed at safeguarding and protecting those who, by “making circumstantial reports of unlawful behaviour grounded on precise and consistent elements of fact, or of breaches of the entity’s organisation and management model, of which he/she becomes aware as a result of the duties fulfilled” (Article 2 of Law No. 179/2017), report such situations (the so-called whistle-blower) within private employment. In particular, article 2 of Law No. 179/2017 makes some changes to article 6 of Legislative Decree No. 231/2001, by foreseeing that organisational models must be supplemented by identifying: (i) specific information channels dedicated to the reporting, of which at least one by computer means, such as to ensure the confidentiality of the identity of the reporting person; (ii) a prohibition of any retaliatory or discriminatory acts against the reporting person; (iii) an insertion within the organisational model’s disciplinary system of sanctions against whomever breaches the protection measures of the reporting person and of whomever makes any reporting with wilful misconduct or gross negligence proving to be groundless at a later stage. In any event, the protection of the anonymity of the reporting person – a cornerstone principle of the institution – encounters the essential limit under section 329 of the Code of Criminal Procedure, entailing the fact that the reported party, were the latter to undergo criminal proceedings, is entitled to know the identity of the reporting party, in order to fully enjoy the fundamental right of defence. Furthermore, it is worth laying stress on the fact that, based on the literal wording of the laws and regulations and on a methodical interpretation, the scope of application of such institution, within private employment, would seem to be limited. Indeed, the introduction of a whistleblowing system with particular protection in favour of the reporting party would only be possible in business contexts having the organisational models under Legislative Decree No. 231/2001. Having stated the above, the introduction of the new rules must be followed positively, in light of the progresses in the matter of protection of the reporting party aimed at fostering the reporting of the unlawful behaviours provided for under Legislative Decree No. 231/2001.