Italy: Whistleblowing: The Practical Guidelines by the Italian Anti-corruption Authority
The Guidelines provide for a practical guidance for employers required to comply with the rules on whistleblowing set forth by the newly introduced discipline by the Italian Legislator.
The document is divided into four sections which regulate with in-depth doctrinal insights: (i) the whistleblowing discipline’s scope; (ii) the external reporting channel and the role of ANAC; (iii) the sanctions’ regime; and (iv) the transitional provisions.
The instructions provided are clear and detailed and focus on:
- the criteria to individuate the entities subject to the discipline
- the measures aimed at granting effective protection against retaliation not only in favour of whistleblowers but also of facilitators (i.e. persons who assist a whistleblower in the reporting process, operating in the same working environment)
- the breaches falling within the whistleblowing discipline pursuant to Italian labour law
- the principles to which companies must refer when implementing their internal reporting channel
- the training that shall be provided to individuals assigned to manage the internal reporting channel
- the management of the anonymous reports (which constitutes a novelty under Italian law)
- privacy and data protection requirements to be accurately fulfilled to ensure the confidentiality of the identity of the person making the report, of the person involved, and of the persons in any event mentioned in the report, as well as the content of the report and the relevant documentation.
The ANAC Guidelines constitutes undoubtedly a helpful tool for companies burdened to implement the whistleblowing regulation. However, it shall be evidenced that the guidance lacks to give indications on the management of the internal channel by multinational groups and, in particular, with regard to the opportunity of employing a global reporting channel supported by local channels operating for each individual entity.
Indeed, the Anti-corruption Authority only refers to the possibility for smaller entities (employing less than 250 employees) to “share” the internal reporting channel and its management with other small companies belonging to the same group, expressly provided by Legislative Decree no. 24/2023.
Key Action Points for Human Resources and In-house Counsel
- Given the growing impact of whistleblowing in the workplace, the guidelines encourage companies to implement personnel’s training initiatives through specific communications, training events, newsletters, and dedicated sections in the company’s intranet portal.
- The new discipline set forth by the Italian legislator grants an extensive protection to whistleblowers against retaliation, expressly listing specific cases that fall under it (e.g. dismissal, change of duties, reduction of salary). In this context, the guidelines provide concrete exemplifications of sanctioned retaliation acts and warn companies from engaging attempted or threatened behaviors, which likewise are considered integrating retaliation.
- The Guidelines promote the adoption of encryption tools by employers to ensure the effectiveness of the privacy and data protection of the involved individuals.