ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
NIUS Legal and HR Solutions Via Cerva 18 20122 Milan Italy
Tel: +39 02 4547 3698 Email: info@niuslex.com Web: www.niuslex.com
1. Opening an HR Internal Investigation 1.1 Circumstances In Italy, the occurrence of an event involving conduct contrary to the law and/or company rules of conduct, or merely the reporting of such event through whistle- blowing channels or otherwise, would give rise to the launch of an HR internal investigation. In some cases, such conduct may be detected even if carried out off company premises (ie, unlawful or criminal con - duct committed outside the workplace but impacting the contractual relationship). Many such cases are extensively documented in Italian case law, such as a bank or supermarket cashier arrested for theft or fraud against third parties, an employee caught using drugs outside working hours, and instances of sexual assault, underscoring the need to assess each case with specific attention, as it differs from any other. 1.2 Bases In the Italian legal system, there are various ways to conduct internal investigations in the context of per - sonnel management, not all of which are regulated by law. Their implementation depends on the specific case and the type of conduct to be verified, and on the particular judicial protection needs that may concern the employer. • The first level of investigation is not regulated by any specific legal provisions and is carried out internally within the company, either through document review or by collecting information from colleagues or third parties. In such cases, the most appropriate way to collect and manage information is guided by evidentiary requirements for potential future litigation. It is therefore advisable to gather
information in compliance with privacy regulations and to keep a documented record of any state - ments made by third parties, ensuring that such statements are signed by their authors whenever possible. • The second level is much more specific, and pertains to so-called defensive investigations. These are formal tools for gathering information relevant to criminal proceedings and are gener - ally employed when the conduct to be verified has potential criminal implications. Defensive investi - gations are carried out by a defence lawyer with a special mandate to search for and identify (also as a preventative measure) evidence in favour of their client – in the context of or with a view to criminal proceedings – and are regulated by Articles 327bis and 391bis of the Italian Code of Criminal Proce - dure. • There are also investigations conducted under whistle-blowing frameworks, which are governed by a dedicated and specific regulatory framework concerning the conduct addressed in Legislative Decree No 24/2023 of 10 March 2023 (the “Whis - tle-Blowing Decree”). • Finally, a company may ascertain facts through a formal audit, carried out by either an internal func - tion or a dedicated external company, in compli - ance with the specific provisions governing such formal mechanisms of investigation. These audits are designed to produce accurate and impartial third-party documentation. These channels can also interact with one another – meaning that, during an investigation, the method of verification can be adjusted based on the specific case. Throughout any of these processes, a company
238 CHAMBERS.COM
Powered by FlippingBook