ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
the Whistle-Blowing Decree further provides that such person may be informed or, upon request, be heard through a paper-based procedure, by means of the submission of written observations and documents. 2.2 Communication to Authorities The Italian legal system lacks a rule regulating possi - ble co-operation with the authorities and the channels of communication with them, nor is there a regulation regarding incentives for carrying out internal investi - gations or uncovering offences. Therefore, employers are generally not obliged to report criminal acts to the authorities unless they are considered public offi - cials or people in charge of a public service. However, certain criminal acts (eg, corruption, bribery, money laundering or fraud against the state) may require mandatory reporting under specific circumstances, particularly in regulated industries or where public resources are involved; see 8.4 Criminal Cases for more detail. 2.3 Confidentiality Agreements and NDAs In Italy, the legal system is primarily concerned with ensuring the confidentiality of the whistle-blower and protecting them. However, there are no limitations on confidentiality through non-disclosure agreements (NDAs). The issue, in this regard, mainly concerns the production of statements in court and their use dur - ing the investigation process. The parties may legally undertake to provide such statements but, regardless of the existence of such a confidentiality agreement, may then be required to abstain from such undertak - ings by the competent authorities in cases provided for by law. In any case, parties are not typically asked to sign confidentiality agreements and/or NDAs covering an HR internal investigation. If there is no agreement to this effect, the employer may still demand the secre - cy of internally shared information by virtue of the employees’ duties of diligence, obedience and loyalty (pursuant to Articles 2104 and 2105 of the Italian Civil Code). However, it must be borne in mind that waivers and settlements – in whole or in part – that have as their object the rights and protections provided for in the decree are not valid unless they are made in the form and manner provided for in Article 2113 (4) of
the Italian Civil Code (in the protected venues, in trade unions or before the judicial authorities). Where confidentiality has been the subject of an express legal undertaking, such conduct could be the subject of a possible legal challenge between the parties, but would certainly constitute conduct that could be challenged from a labour law point of view. In the event that confidentiality was not the subject of an express agreement, such conduct can only be challenged from a labour law point of view (under the above-mentioned duties). 2.4 Preliminary Investigation and Scope- Setting In Italy, it is possible to conduct a preliminary investi - gation to determine whether a full HR internal investi - gation is warranted. However, it is important to be very cautious, as there is a real risk of information leaks or “contaminating” the evidence. Nonetheless, there is no legal prohibition or formal procedure by law. It is an internal evaluation and a matter of common sense based on the principle of evidence; where there is a risk or perception of an issue, the legal need for an investigation and its type can be assessed. In any case, owing to the lack of regulation, the employer may operate as it sees fit. It is worth considering that, under Italian law (again, given that internal investigations and their requirements are not regulated), potential preliminary internal investiga - tions would hardly be distinguishable from actual and complete internal investigations, from a logical point of view.
3. Interviews and Fact-Finding 3.1 Interviewees
Typically, whistle-blowers and employees (or external collaborators) who are potentially aware of the facts are interviewed in the course of an HR internal investi - gation in Italy. Where the activities concern behaviour by an employee that does not have any corporate or criminal implications (ie, a simple HR investigation), and where it is deemed necessary to hear witnesses, at least two are usually preferred (if their versions coin - cide).
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