Software WHISTLEBLOWING

What does whistleblowing mean?

whistleblowing is the conduct of those who reveal the existence within an organization of practices, active or omissive, perceived as illegal or, in any case, immoral in order to obtain effective actions to restore legality by the entity.

The Whistleblower is the person who makes the report with a corporate reporting channel.

The Law 179/2017 requires companies that have an Organizational Model pursuant to DLGS 231/2001 to also equip itself with reporting channels (whistleblowing channels) that allow company employees and selected third parties to report violations of the law or the company’s code of ethics.

Details

How is it protected?

The whistleblower is protected in two directions: towards the outside, since it is forbidden to reveal their identity; internally, since he cannot be punished for making the report.

What does the law provide?

The law provides, for the employer, for the establishment of appropriate “reporting” channels that guarantee the confidentiality of the identity of the whistleblower as part of the management of the report.

The legislator expressly prohibits retaliation or discriminatory acts, direct or indirect, against the whistleblower for reasons connected, directly or indirectly, to the report.

Safeguards for the employer

To complete the specific sanction system that should protect the whistleblower and secure the employer from receiving instrumental and fraudulent reports, the adoption of specific sanctions is envisaged for those who violate the protection measures of the whistleblower, as well as those who carry out with willful misconduct or gross negligence reports that turn out to be unfounded.

Retaliatory dismissal

Among the points of greatest interest, here we point out that relating to the nullity of the acts that will be classified by the labor judge as retaliatory or discriminatory, which will give rise to a sentence condemning the employer and, if necessary, to the reinstatement of the worker in the workplace and restoration of the original situation.
Retaliatory dismissal is well known in Italian jurisprudence which, with a consolidated orientation, establishes that in order to obtain recognition of the retaliatory nature of the contested act, two elements must be used:
1. the reason for retaliation (or unlawful reason);
2. the absence of other reasons determining the withdrawal, that is, the exclusivity of the reason. Also, again for the case law, the worker who contests the retaliatory nature of the dismissal has the burden, entirely at his own expense, of proving, with sufficient certainty and specific elements, both the intent of retaliation, and that this intent was effective. determinative and exclusive of the expulsive will of the employer.
Also, again for the case law, the worker who contests the retaliatory nature of the dismissal has the burden, entirely at his own expense, of proving, with sufficient certainty and specific elements, both the intent of retaliation, and that this intent was effective . determinative and exclusive of the expulsive will of the employer. That is, it will be up to the employer to demonstrate that the measures adopted and contested are motivated by reasons unrelated to the reporting process initiated by the employee.

Important update on whistleblowing

The Directive of the European Parliament n. 1937 of 23 October 2019 standardized the Whistleblowing discipline of the Member States of the European Union.

All companies that have 50 or more employees or an annual turnover of at least ten million euros, as well as companies that operate in sectors that are considered “high risk” must have whistleblowing channels.

Whistleblowing channels must be secure and ensure discretion and anonymity for those who report and for those who are reported. Once the whistleblower report has been received, the companies are then required to provide feedback within three months following its formalization and, possibly, if deemed necessary, within the same deadline they will have to follow up on the reports.

Compared to Italian law, whistleblowers can be, in addition to employees, self-employed workers, consultants, contractors and suppliers

The protections of whistleblowers also extend to family members and colleagues of the whistleblower.

Whistleblowers will also be able to make reports on matters other than those relating to Legislative Decree 231/2001 and, therefore, also in the environmental, financial, public health, data protection, transport, product safety and much more.

Possible Risks

The mechanism that we have briefly outlined above is certainly aimed at ensuring the functionality of the system and the set of safeguards outlined to date, in the abstract, appears entirely rational as well as appropriate to the delicate situation of reference. Some perplexity arises when you try to imagine what the application drift of the legislation could be, especially given the fact that the rule has not yet passed the scrutiny of interpreters and the judiciary.

Obligation to evaluate any whistleblowing initiative

The novelty is not insignificant. In light of the foregoing, in fact, each employer will be required to carefully and preventively assess any and all initiatives aimed at modifying the employment relationship of the personnel involved in a whistleblowing process. The greatest risk is represented by the possibility that even completely legitimate and protectable measures, as justified by the recurrence of exquisitely entrepreneurial needs, for the simple fact of involving a whistleblower, may fall into the meshes of the new discipline in the matter of burden of proof . The most trivial example is represented by the need to transfer or vary the tasks, completely ordinary and recurring initiatives in today’s business life. And the examples could be endless given that the law in question speaks generically of “acts of retaliation or discriminatory, direct or indirect“, without making any case studies.

Possible exploitation

All initiatives susceptible to “get worse“, in a broad sense, the working activity of the whistleblower is potentially, and instrumentally, contestable in terms of retaliatory nature, for the sole fact of afflicting a whistleblower, while in the past it was the employee’s responsibility to demonstrate the retaliatory nature of the employer’s initiative in a timely and convincing manner, also risking the sentence to pay the costs of the trial in the event of lack of proof, today the entire process justification will be paid by the employer.