ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter With regard to the employer’s duty to protect the reporter during an HR internal investigation, the Whis - tle-Blowing Decree provides that: • the identity of the whistle-blower may not be dis- closed to persons other than those competent to receive or follow up on whistle-blowing reports; • the protection concerns not only the name of the whistle-blower but also all elements of the report from which the identification of the whistle-blower may be derived, even indirectly; and • the protection of confidentiality is extended to the identity of the persons involved and the persons mentioned in the report until the conclusion of the proceedings initiated on account of the report, in compliance with the same guarantees provided for in favour of the whistle-blower. 4.2 Protection of the Respondent There are no protection and guarantee mechanisms for the subjects of the report in HR internal investigations who are unaware of a process that is not managed by third parties but by other corporate units, such as internal auditing. The protection of the whistle-blower is lost if they are found to be liable for libel, slander or defamation. On this assumption, the respondent (who will know the identity of the reporter) may possibly act against the reporter by way of compensation for dam - age to their image and reputation. 4.3 Measures Against the Respondent Although internal investigations and disciplinary pro - ceedings may often travel on the same track, they could well be separated, being potentially autono - mous from each other (internal investigations may relate to more situations than those concerning a sin - gle employment relationship involved in the specific investigations). Having become aware of any conduct or of any infringement of the law or company regula - tions, the employer may serve a disciplinary letter on the employee and may then issue a disciplinary sanc - tion, in accordance with the formalities laid down by law and by collective bargaining. In cases where the accusations are particularly serious and well found -
in cases where the employee presents their justifica - tion orally (in a disciplinary proceeding) – especially if accompanied by a union representative – it is advis - able to prepare a record of the meeting, which will then be signed by the parties involved. 3.10 Recording The possibility of recording a witness as part of inter - nal company investigations is a sensitive issue that requires balancing organisational needs with compli - ance with applicable law – in particular, with regard to privacy, the right to confidentiality, and individual liberties. Generally speaking, a company may record a witness in the context of HR internal investigations, provided that this is proportionate and justified by a legitimate interest, and complies with data protection legislation. However, it is advisable to act transpar - ently, and to inform the witness whenever possible and adequately protect the data collected. As already explained in 1.2 Bases , it is possible to record an interview in so-called defensive investigations. If a participant (whether the whistle-blower, the per - son being reported or a manager handling the report) records a conversation without informing the others, the lawfulness of this action and the admissibility of the recording will be assessed ex post facto based on jurisprudential principles, rather than depending on preventative safeguards. Recording for non-defensive purposes or disseminating the content is a criminal offence. 3.11 Other Fact-Finding Given that HR internal investigations are not regulated in Italy, the methods of investigation have not been formalised. The modalities chosen in each instance must still be carried out in compliance with Italian laws (in particular, labour law, privacy law and criminal pro - cedural law). Article 8 of the Italian Workers’ Statute contains a very stringent rule on this point, prohibiting the employer from carrying out investigations – even by means of third parties – into the employee’s politi - cal, religious or trade union opinions, as well as into facts that are not relevant to the assessment of the employee’s professional aptitude.
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