Whistleblowing: what those who report a crime in their company should know

The lawyer Andrea Scarpellini of Studio Villa & Villa e Associati gave his expert opinion to Luigi Dell’Olio in the survey the journalist carried out on the subject of Whistleblowing.  

If I report an offence committed at work to my superior, can I be sure that my anonymity is protected? What risks do I run? And what if it emerged that the issue reported had no solid basis? These are some of the questions that many workers are asking themselves, after the approval in mid-November of the law on whistleblowing, designed to allow the reporting of unlawful behaviour by colleagues, while protecting the whistleblower from retaliation.

If I report an offence committed at work to my superior, can I be sure that my anonymity is protected? What risks do I run? And what if it emerged that the issue reported had no solid basis? These are some of the questions that many workers are asking themselves, after the approval in mid-November of the law on whistleblowing, designed to allow the reporting of unlawful behaviour by colleagues, while protecting the whistleblower from retaliation. For Raffaella Quintana, partner at Dla Piper, the new law is to be welcomed, “considering the effectiveness of the fight against corruption that similar legislation has already demonstrated in those countries that adopted it some time ago.” The law provides protection for the informant, whose identity must be protected and remain confidential; just as the author of the report cannot be subjected to retaliation or discrimination. “The law expressly requires that reporting channels be made available, including digital ones, which guarantee confidentiality,” added the lawyer. It also establishes, for the protection of those who reveal colleagues’ unlawful conduct, that they cannot be punished, be given more menial duties or transferred. “If, for example, an employer decides to dismiss a whistleblower, he would have to prove that he had not received the latter’s report of illegal behaviour,” added Quinta. “Moreover, by virtue of the general principles of Italian law, dismissing an employee because they had complained of irregular conduct would be illegitimate, and indeed totally null, meaning that the employee would be entitled to reinstatement,” added Damiana Lesce, partner of Trifirò & Partners. Likewise, a transfer and/or change in duties resulting from submission of a complaint would be illegitimate.” Again, we appreciate the fact that the recently approved law “also introduces specific financial penalties for the person responsible for the aforementioned acts of discrimination,” he added.
Sabrina Galmarini, partner and manager of the regulatory team at La Scala, added: “In the public sector it is forbidden to reveal the identity of the whistleblower both in disciplinary proceedings, and in accounting and criminal proceedings. If disciplinary action is found to be based, even partially, on a whistleblower’s report, the latter’s identity may be revealed at their consent, otherwise the report will remain unusable.”

To further protect the whistleblower’s identity, it is envisaged that the National Anti-Corruption Authority (ANAC) prepare, having consulted the data protection authority, guidelines for the presentation and management of reports. Lesce raised some doubts about the effectiveness of the law with regard to its application in the private sector: “Companies will have to establish procedures to report offences. This means that everything is left to the individual companies in a country where the vast majority are small and medium-sized enterprises, so much will also depend on trade unions’ vigilance.”

One point remains to be clarified: what happens if the report turns out to be unfounded? “There are no consequences, unless the report was submitted with malicious intent or gross negligence,” explained Alessandro Musella, leader of the corporate compliance focus team at BonelliErede. “Therefore, to avoid risks, we must only submit reports based on precise, concordant facts of which we have direct knowledge, and avoid using reports of irregular conduct as an outlet for malaise within the company, not referring to precise, objective facts but to hearsay or mere rumours.”
Summarizing, Andrea Scarpellini of Studio Villa & Villa e Associati did not feel that the emphasis on the law’s innovative nature was fully justified, “almost as if it were the definitive solution to the atavistic defects of our country”. He did however acknowledge that “it has the merit of addressing the issue and of introducing a series of rules to protect those who report wrongdoing.”

All then agree on one point: for a more detailed assessment we will need to wait and see how the law is applied in practice.