Whistleblowing: tips for business companies

When people talk about whistleblowing, no one (especially companies) really knows the requirements for being compliant with the law because the legal order in this area is rather incomplete and not particularly user-friendly. For this reason, here we provide some initial indications which we will elaborate upon in subsequent articles.

 

Regulatory framework in Italy and Europe

In Italy, the Whistleblowing Reporting System (hereinafter “Whistleblowing”) is regulated by Law n. 179 of 2017. In particular, Law n. 179 introduces new forms of protection for employees (in private and public companies) who report illicit acts committed inside their company. Considering private companies, the abovementioned law introduced an amendment to Article 6 of Legislative Decree n. 231 of 2001 that allows for the introduction of Whistleblowing inside the Organisation, Management and Control Model (hereinafter the “Model”) prescribed by the Decree. Thanks to Whistleblowing, the employee may inform his company if he/she becomes aware of a violation of the Model and the ethic code and his/her identity will be protected. The law also introduces an express prohibition to take retaliatory action against the reporting agent.

In April 2019, the European Parliament approved a Directive on Whistleblowing (hereinafter “Directive”) that must be adopted in the next two years by each Member State (including Italy).

This Directive introduces some changes – described hereunder – that make the new discipline different from the old one.

First of all, all companies that have more than fifty employees must introduce the Whistleblowing System. Whistleblowing must allow to preserve the identity of reporting agent.

The main difference in the actual regulation is that not all companies have Whistleblowing at present. This is due to the fact that, as explained above, the actual regulation of the Whistleblowing falls under Legislative Decree n. 231 of 2001 and therefore only companies that have adopted the Model presently have a Whistleblowing System. In other words, only the companies that have adopted a Model also have Whistleblowing as a part of the reporting system to the Supervisory Body (hereinafter the “SB”).  Today, however, it is not required to approve a Model.

Another difference between the new Directive and the old Italian law consists in the protection of the reporting agent not only in the case he/she is an employee of the company, but also in the case he/she is an advisor, agent, supplier, intern or volunteer.

The Directive doesn’t contain any specific provision on the admissibility of anonymous reporting. In this respect, the Italian legislator may decide to take a specific and explicit point of view. So, in the meantime, each company can freely decide what to do with respect to Whistleblowing, remembering that  Confindustria’s[1] official guidelines on this topic (which are the major reference on this matter in Italy) explicitly discourage rumours and suggest to adopt a “reporting system based on facts or real behaviours that do not follow the hierarchy but enable employees to report the case of a violation of rules inside the legal entity, without any fear or risk of retaliatory action” (see page 70 of Confindustria’s guidelines – our translation). The reported sentence makes it clear that Confindustria favours a reporting system that is not anonymous.

 

Conclusion and operative notes

As we have described above, this matter is quite fluid because the regulatory framework is not yet very detailed. While waiting for the regulatory action of the Italian legislator, companies may freely decide how (and if) to regulate Whistleblowing, knowing that if they have more than 50 employees they will have to introduce Whistleblowing in the next two years.

[1] General Confederation of Italian Industry