ITALY Law and Practice Contributed by: Michela Bani, Alessandro Paone and Giacomo Bertelli, NIUS Legal and HR Solutions
6.8 Disciplinary Measures The type of disciplinary sanction that the employer may impose on the employee depends on the type of conduct complained of and what the collective agree - ment applicable to the employment relationship (and, of course, the law and Civil Code) provides for on that point. Such a disciplinary dispute must first and fore - most respect the principle of “timeliness”, by virtue of which an employer wishing to challenge unlawful conduct by an employee must do so without delay, in the shortest possible time. Therefore, this temporal consideration should be taken into account from the day on which the employer has completed the investi - gation into the relevant contested conduct. Generally, disciplinary sanctions range from a warning, a fine of up to three hours’ pay, or suspension from work and pay (for the maximum days provided for by the col - lective agreement applied to the employment relation - ship), to dismissal with notice and – in the most severe cases – without notice. At the conclusion of the investigation, if the employer identifies behaviour attributable to the employee that warrants disciplinary action, this must be formally communicated through a disciplinary notice. The employer cannot directly impose a disciplinary sanc - tion. Italian legislation (specifically, the Italian Work - ers’ Statute) establishes the worker’s inalienable right to defence, which allows the employee to respond to the disciplinary notice and present their justifica - tions (eventually with the assistance and presence of a union representative). The employer can only legitimately impose the disciplinary sanction deemed most appropriate after the worker has provided their justifications (or after the expiration of the deadline for submitting them), taking into account the justification provided by the employee. 6.9 Other Measures In the context of Italian corporate practices, organi - sational measures such as team-building or media - tion are not commonly adopted. In some instanc - es, regardless of the validity of the allegations, the employer may take specific actions to preserve the well-being of the work environment – for example, by implementing a transfer deemed necessary owing to organisational incompatibility or by taking appropriate measures to mitigate work-related stress risks, when -
ever the information (whether verified or unverifiable) suggests such actions. The employer’s failure to take appropriate action, even in the face of unsubstantiated facts, could potentially expose them to future claims for violating the pro - visions of Article 2087 of the Italian Civil Code. As further elaborated in 8.2 Sexual Harassment and/or Violence and 8.3 Other Forms of Discrimination and/ or Harassment Including Bullying and/or Mobbing , this provision establishes that employers must take all necessary measures to protect the physical integrity and psychological well-being of the employee. The occurrence of damage (moral, existential and/or bio - logical) resulting from the failure to comply with this legal provision entails the obligation to provide com - pensation for such damage. To ensure the right to personal data protection for whistle-blowers or reporting individuals, the legisla - ture has established that the acquisition and man - agement of reports, public disclosures or complaints (including communications between competent authorities) must comply with data protection regu - lations – in particular, Regulation (EU) 2016/679 (the “EU General Data Protection Regulation”, or GDPR) and Legislative Decree No 196 of 30 June 2003. Any exchange and transmission of information involving the processing of personal data by EU institutions and/or authorities must also comply with Regulation (EU) 2018/1725. Data protection must be ensured not only for the whistle-blower or reporting individual but also for other parties whose confidentiality is protect - ed, such as facilitators, involved persons and individu - als mentioned in the report, as they are considered “data subjects” under data protection regulations. 7.2 Specific Rules Data controllers, data processors and individuals authorised to process personal data must adhere to several fundamental principles – namely, they must: • process data lawfully, fairly and transparently; 7. Data Protection 7.1 Collecting Personal Data
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