ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
1.7 Other Cases An employer’s decision on whether or not to go ahead with an HR internal investigation in cases where an investigation is neither obligatory nor prohibited usu - ally depends on matters of business expediency, and is determined on a case-by-case basis. More specifi - cally, in all cases where an investigation is not formally mandatory, the employer could be indirectly obliged to conduct one in order to avoid violating the provisions set forth in Article 2087 of the Italian Civil Code (which require the employer to adopt all necessary measures to safeguard the physical integrity and psychologi - cal well-being of employees) and Legislative Decree 81/2008 (the “Decree on Workplace Safety”), which regulates health and safety in the workplace. This applies even in cases where companies have adopted the so-called 231 Model. In any case, it is a matter of prudence to prevent a known but unverified fact from becoming internally accepted, as this could result in an inability to sanction the employee responsible and even in executives being held liable for negligence due to their failure to act. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Article 5 of the Whistle-Blowing Decree requires an acknowledgement of receipt of the report to be issued to the reporting person within seven days from the date of receipt, which all happens completely anon - ymously. If the information is received outside the objective and subjective boundaries of the whistle- blowing regulation, the reporter has no right to receive feedback regarding the report. The legislation does not recognise a general and unconditional right of the reported person to be informed of the report concerning them; such right is ensured only where the internal investigation is brought to an end and, as a consequence thereof, the reported person is formally notified of the alleged misconduct by means of a disciplinary charge let - ter, which they may challenge and defend against in accordance with the applicable law and collective bar - gaining agreement. However, in support of the report - ed person and their right of defence, Article 12 (9) of
doctrine, there is a legal obligation to consider the option of carrying out an internal investigation (after gaining knowledge of news/events relevant thereto). This could be considered an obligation only if the company receives information through the mandatory reporting channels, given that Article 5 of the Whistle- Blowing Decree provides that the company must “dili - gently follow up” on reports received. In any case, and regardless of the referenced regula - tion, it is important to also consider the Italian rules on corporate criminal liability – ie, whenever a com - pany becomes aware of potentially criminal conduct, it is advisable to conduct internal investigations or full audits to ascertain the facts, identify risk areas and responsible parties, and adopt the most effective legal, HR and organisational measures. This approach aims to mitigate the company’s liability and economic risks (and even personal risks for executives and the board). 1.6 Prohibition on Carrying Out an HR Internal Investigation There is no specific regulation prohibiting the carrying out of an investigation under certain circumstances, except for the special provision in Article 8 of the Ital - ian Workers’ Statute that prohibits any kind of inves - tigation – including by third parties – into workers’ political, religious or trade union opinions, or into any other matters that are not relevant in assessing the worker’s professional aptitude. It should be also noted that, if the competent authorities are investigating the same facts, the company must not take any action that could interfere with that investigation and must comply with the prescriptions that it will eventually receive. In the specific case of the possible involvement of the judiciary in criminal offences, the investigation of crim - inally relevant facts falls under the jurisdiction of the competent public prosecutor’s office ( Procura della Repubblica ) (see 8.4 Criminal Cases ). The company must take action (the so-called self-cleaning meas - ures) to prevent the continuation of the offence and ascertain the facts that are immediately discernible to it, while remaining autonomous in taking disciplinary action against the employee involved.
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