ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
ed, upon issuing the disciplinary notice, the employer may precautionarily suspend the respondent (who will therefore not be allowed to return to the workplace) pending their justification and the conclusion of the disciplinary procedure. 4.4 Protection of Other Employees Employees are protected as described in 4.1 Pro- tection of the Reporter whenever they act as whis - tle-blowers, facilitators (individuals who assist the whistle-blower in the reporting process, such as col - leagues or representatives) and witnesses. In any case, the employer may – pending completion of the investigation – demand such measures as it deems appropriate, such as the precautionary suspension mentioned in 4.3 Measures Against the Respond- ent (which, in fact, can also be adopted in the case of conduct potentially capable of negatively affecting the safety and protection of the employee population). 5. Procedural Requirements and Proof 5.1 Requirements There are no specific provisions regarding procedural guarantees that must be put in place or steps that must be followed in HR internal investigations in Italy (with the exception of the reminder of an employee’s right to refrain from testifying on circumstances involv - ing their own involvement where the internal investiga - tion concerns potentially criminal facts, as outlined in 3.6 Support Person and/or Lawyer ). It is understood that investigations must be carried out in fairness and good faith (Articles 1175 and 1375 of the Italian Civil Code), without discriminatory and/or intimidating attitudes. The purpose of investigations (and this is therefore reflected in the materiality of how they are carried out) must obviously comply with Article 8 of the Italian Workers’ Statute, which prohibits any kind of investigation – including through third parties – into workers’ political, religious or trade union opinions, or into matters that are not relevant to assessing the worker’s professional aptitude. 5.2 Internal Regulations The employer can and should provide an internal regulation along the lines of the general provisions of the Whistle-Blowing Decree, pursuant to the provi -
sions set forth therein. The Whistle-Blowing Decree establishes the obligation to implement an internal or external channel for receiving and managing reports concerning violations of national or EU regulations where such violations are detrimental to the company. The legislature aimed to encourage the use of internal channels within the organisation, as they are closer to the source of the issues being reported; effective prevention and prompt detection of violations depend on obtaining relevant information from those closest to the origin of the violations. Such internal reporting channels must ensure the confidentiality of the identity of the whistle-blower, the person involved and the person mentioned in the report, as well as the content of the report and the related documentation. The National Anti-Corruption Authority ( Autorità Nazionale Anticorruzione , or ANAC) has the power to impose an administrative monetary penalty ranging from EUR10,000 to EUR50,000 when it identifies the following within public and private sec - tor entities (Article 21, paragraph 1, letter b) of the Whistle-Blowing Decree): • the failure to establish reporting channels; • the failure to adopt procedures for submitting and managing reports; or • the existence of procedures that do not comply with the provisions of Articles 4 and 11 of the Whistle-Blowing Decree. Regarding the most efficient way to carry out inves - tigations, the 2023 Standard ISO-37008 (“Internal Investigations of Organisations – Guidance”) offers general but comprehensive insights regarding the instruments to be employed and the best practices to be followed during HR internal investigations. How - ever, such investigative tools and best practices must be employed in compliance with the complex scenario of Italian legislation. 5.3 Burden and Degree of Proof In HR internal investigations in Italy, the employer bears the burden of proof, through the offices and the persons responsible for this task. The documentation related to each report must be kept for the necessary time, and under no circumstances for longer than five years from the date of communication of the final out -
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