ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
3.2 Participation In Italy, whether or not there is anything an employer can do if an interviewee refuses to participate in the investigation, or only participates in certain aspects of it, will depend on the specific situation. If an investi - gation proves an employee’s knowledge of the facts, such reticence to participate could potentially be the subject of an independent disciplinary charge against the employee, considering the potential violation of the duties of diligence, loyalty and obedience men - tioned in 2.3 Confidentiality Agreements and NDAs . Obviously, it is not possible to suggest a standardised solution in any one particular situation, as any solution should be carefully and cautiously weighed against the facts of the case. 3.3 Format As there is no normative reference in Italy, there are no restrictions on the ways in which interviews can be carried out in HR internal investigations, so they can be conducted remotely (eg, via Teams or Zoom). In defensive investigations, it is also possible to record the interview with a video camera; the employee must provide a specific statement to the external lawyer who records it, declaring that what has been stated and recorded matches exactly what they have said and that they are criminally liable. This means that if it emerges that they lied, they would be committing the crime of making false statements to the lawyer, who in that context is considered a public official. 3.4 Interviewers In Italy, practice dictates that interviews are conduct - ed by HR offices and managers, without any restric - tions on the number of interviewers. There are no constraints regarding issues of gender, objectivity or seniority. 3.5 Neutral Party There are no instances in which a neutral third party is required to be present during interviews as a witness in HR internal investigations in Italy. 3.6 Support Person and/or Lawyer Interviewees do not have the automatic right to be accompanied by a support person or a lawyer during an interview as part of an HR internal investigation in Italy, but the company can always conduct the inves -
tigations through a lawyer. However, if the internal investigation concerns potentially criminal facts, the employee should be reminded of their right to refrain from testifying on circumstances involving their own involvement, and the employee will certainly not be obliged to answer when the integrity of the privilege against self-incrimination is at risk. This is not the case at the venue for disciplinary justifications after an employee has received a disciplinary letter; there, the employee can be accompanied by a union rep - resentative (if the challenged employee so requests). If the person is “accused” of conduct that is punish - able under labour law, they can ask to present their justification in the presence of a union representative appointed by themselves, after receiving a disciplinary notice, and the employer cannot deny such appoint - ment. 3.7 Information As there is no normative reference in Italy, there is no information that interviewers are required to provide to interviewees at the start and/or the end of an interview in an HR internal investigation, with the exception of the reminder of their right to refrain from testifying on circumstances involving their own involvement where the internal investigation concerns potentially crimi - nal facts, as outlined in 3.6 Support Person and/or Lawyer . 3.8 Stopping the Interview Owing to the lack of normative reference in Italy, interviewees are free to request that the interview be stopped in an HR internal investigation. Such con - duct – as already depicted – can potentially only stand alone (or, rather, in a separate disciplinary procedure) for violation of the duties of diligence, loyalty and obe - dience mentioned in 2.3 Confidentiality Agreements and NDAs . 3.9 Minutes It is not necessary to take minutes during an interview as part of an HR internal investigation in Italy, but it can be done, depending on the type of offence being investigated. In the case of conduct relevant only to labour law, a report may be advisable, but the inter - viewed employee may be called as a witness before the judicial authorities in the event of litigation between the company and the charged employee. However,
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