Whistleblowers liable for similar actions
The legislation that protects an employee who reports unlawful conduct which he/she has become aware of due to his/her duties is ‘aimed at preventing unfavourable consequences for the fact in itself of having reported unlawful conduct, but certainly does not create exemptions with respect to the offences that that person had allegedly committed independently or in concert’. This was affirmed by the Court of Cassation with order No 9148 of 31 March 2023. The case originates from a disciplinary suspension imposed on a nurse working at a public sector hospital, who had worked for a private body for eight years without authorisation from her employer. In the judgment in second instance the Court of Appeal of Rome confirmed the ruling of the Court of first instance and rejected the appeal against the sanction under Article 54-bis of Italian Legislative Decree No 165/2001 – i.e. the protection envisaged in the event of reporting of offences of which the employee became aware due to the duties performed (the employee had, in fact, reported similar behaviour of other colleagues to the employer). The Court of Appeal noted the fact that the employee, having in turn conducted herself in the same way, certainly could not benefit from the protections invoked. The employee lodged an appeal against this decision before the Court of Cassation, in which the Health Authority filed a counter-appeal. In her sole ground of appeal, the appellant alleged breach and erroneous application of Italian Legislative Decree No 165 of 2001, Article 54-bis, on the basis that a whistleblower would only be liable when the report would constitute slander or defamation. The Court of Cassation – in confirming the assessment of the appeal judges – clarified that the function of the aforementioned Article 54-bis is to prevent the employee who makes a report from being sanctioned, dismissed or otherwise subjected to discriminatory measures for reasons connected, even indirectly, to the report.
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