ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
may choose to engage external professionals with specific investigative expertise (eg, private investiga - tors or forensic and technological consulting firms), provided they are employed in compliance with priva - cy regulations. Investigative agencies must also pos - sess the proper authorisations issued by the Ministry of the Interior. It is particularly important to note that, in Italy, the regularity of the investigative process can directly affect the legitimacy of any resulting dismissal meas - ures. This, in turn, can have significant financial con - sequences for the company or employer. In general, then, the regulations are derived indirectly through the limits placed by labour law – ie, Law No 300/1970 (the “Italian Workers’ Statute”), special laws (especially on safety matters) and collective agree - ments), in particular – and by privacy law, criminal law and criminal procedural law. 1.3 Communication Channels In Italy, there is no obligation for employees to report through a specific channel. Employees are free to make reports in any manner, and the company can decide whether to initiate subsequent investigations. There is a specific exception concerning the rules on so-called whistle-blowing, which were introduced in 2017 and later reformed in 2023. Specifically, this obligation was provided for by Article 4 of the Whis - tle-Blowing Decree. It requires companies to acti - vate their own “reporting channels”, which guaran - tee that the identity of the reporting person and any other information from which this identity could be inferred – directly or indirectly – may not be disclosed without the express consent of the reporting person themselves. Also, this channel must guarantee the confidentiality of the person involved and any person mentioned in the report, as well as the content of the report and its documentation. Furthermore, the law stipulates that the activation of these internal channels must take place with the involvement of trade union organisations (this is purely informative involvement, for the sole purpose of the company potentially obtaining opinions from these
organisations). Within this channel, reports can be made in two ways at the employer’s choice: • in writing (preferred); or • orally (through telephone lines, voice-messaging systems or face-to-face meetings). 1.4 Responsibility The Whistle-Blowing Decree provides that the man - agement of the report must be entrusted to a person, internal or external to the administration, or to a dedi - cated office – both of which must have autonomy. In this case, “autonomy” entails: • impartiality – the person in charge must operate in a neutral and equidistant manner with regard to the parties involved, carrying out an activity free from any conditioning or favouritism; and • independence – the person in charge must be capable of freely carrying out the activities to which they are bound for the purpose of managing the report, without interference. In other words, the person in charge must possess operational and evaluative autonomy. However, if the investigation results not from a report but from direct knowledge of facts committed by one’s own employee, Italian legislation does not expressly stipulate which figures may or may not “play a role” in the management of an internal investigation. It is the employer (the “company”) that is formally the “counterparty” in any internal investigation; in such operations, the company (through its highest repre - sentatives) may operate with the help of whomever it deems most appropriate, which is usually HR offices and managers. In this scenario, external activities are only permitted in private investigations, which are sub - ject to stringent legal regulations and jurisprudential guidelines. In some cases, however, the assessment may require external expertise, including technical or scientific expertise, for which an independent consult - ant is selected (for both options). 1.5 Obligation to Carry Out an HR Internal Investigation There is no obligation to carry out an HR internal inves - tigation in any circumstances. At most, as argued in
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