On 23 April 2018, the European Commission formalised a proposal for a Directive for the protection of whistleblowers (Directive of the European Parliament and of the Council on the Protection of Persons reporting on Breaches of Union Law) in all Member States. Its purpose is to standardise the laws currently in force in some Member States, including Italy, and oblige Member States which have not yet introduced such legislation, to do so. In particular, the proposal states that the “European Whistleblower” (that is, anyone who wants to report breaches within EU territory) has the duty to report if he becomes aware of breaches of provisions of EU law, including: money laundering, environmental protection, public health and the protection of privacy. The proposal provides that the subjects of the legislative initiative (private companies with at least 51 employees or a turnover of more than 10 million euros, as well as public and government bodies of municipalities with more than 10 thousand inhabitants) adopt protection mechanisms. If the proposal in question is accepted, these mechanisms would necessitate the adaptation of any 231 Models adopted, and a system for gradually revealing identity would also be provided for, allowing whistleblowers to liaise with the relevant investigative authorities.

With judgment No. 11645/18, the Court of Cassation made clear once again its opinion on the relation between the right of criticism, protected under the Constitution, and the civil duty of loyalty and honesty in the relationship between employees and employers.
In the case in question, an employee of a famous telephony company had been fired after having sent several emails to her superiors, complaining about her work position, using wording deemed offensive and libellous by the employer.
Even though the legitimacy of the decision before the Court of Cassation did not end favourably for the petitioning employer, the judgment offered the opportunity to summarize the interpretation of jurisprudence in the matter of the right to criticism of the employer and the related boundary of insubordination.
In particular, the case before the courts that represent the founding stone on the matter in question (Civil Court of Cassation, Labour Law, No. 1173/1986), in order to establish in practical terms within which limits the right to criticism against the employer is legitimate and as such not subjected to disciplinary dismissal, it is necessary first to verify if it meets the following requirements: if the conduct in question has been effectively damaging to the corporate reputation and to that of its managers; if the allegations that are deemed libellous have been expressed in defence of legally relevant interests and if the facts subject matter of the statement deemed libellous were real.

Read here the original version published on Il Quotidiano del Lavoro.

Law No. 179/2017 has introduced the whistleblowing institution within private employment. As is well-known, this is not a totally new institution for our legal system, since it had already been introduced for the public sector only by Law No. 190/2012, which amended article 54-bis of Legislative Decree No. 165/2001. The new law provision is aimed at safeguarding and protecting those who, by “making circumstantial reports of unlawful behaviour grounded on precise and consistent elements of fact, or of breaches of the entity’s organisation and management model, of which he/she becomes aware as a result of the duties fulfilled” (Article 2 of Law No. 179/2017), report such situations (the so-called whistle-blower) within private employment. In particular, article 2 of Law No. 179/2017 makes some changes to article 6 of Legislative Decree No. 231/2001, by foreseeing that organisational models must be supplemented by identifying: (i) specific information channels dedicated to the reporting, of which at least one by computer means, such as to ensure the confidentiality of the identity of the reporting person; (ii) a prohibition of any retaliatory or discriminatory acts against the reporting person; (iii) an insertion within the organisational model’s disciplinary system of sanctions against whomever breaches the protection measures of the reporting person and of whomever makes any reporting with wilful misconduct or gross negligence proving to be groundless at a later stage. In any event, the protection of the anonymity of the reporting person – a cornerstone principle of the institution – encounters the essential limit under section 329 of the Code of Criminal Procedure, entailing the fact that the reported party, were the latter to undergo criminal proceedings, is entitled to know the identity of the reporting party, in order to fully enjoy the fundamental right of defence. Furthermore, it is worth laying stress on the fact that, based on the literal wording of the laws and regulations and on a methodical interpretation, the scope of application of such institution, within private employment, would seem to be limited. Indeed, the introduction of a whistleblowing system with particular protection in favour of the reporting party would only be possible in business contexts having the organisational models under Legislative Decree No. 231/2001. Having stated the above, the introduction of the new rules must be followed positively, in light of the progresses in the matter of protection of the reporting party aimed at fostering the reporting of the unlawful behaviours provided for under Legislative Decree No. 231/2001.

On 25 May 2018, the European Regulation on the protection of personal data has entered into full force in each member state of the European Union (including Italy). Among the major changes there are: focus on the accountability of the data controllers and data processors, the introduction of the Data Protection Officer (so-called DPO) as well as the obligation to (i) perform, at the occurrence of specific circumstances, an impact assessment; (ii) notify the Data Protection Authority and notify the data subject in the case of “data breach” and (iii) keep a Data Processing Record. The penalties for those failing to comply with the Regulation can reach up to 4% of the overall annual turnover related to the previous fiscal year.

The Confederdia Union has requested clarifications to the National Labour Inspectorate (“INL”) regarding the rejection issued by the territorial office of the Inspectorate to the filing of the minutes of conciliation signed pursuant to art. 411 of the Civil Code, justified with the alleged lack of powers by the union. In this respect, INL, with note dated 17 May 2018 number 163, has above all highlighted that the fundamental requirement of conciliation talks with a trade union is the fact that the agreement has to be reached with the effective support of the employee by his/her trade union. Furthermore, the note has recalled – after having referred back to the rules governing conciliation talks with trade unions as well as the requirements of actual mandate and representation powers called for by the case law of the supreme courts – what had already been established by the Ministry of Labour and Social Policies (protocol 5199 dated 16/03/2016 and protocol 5755 dated 22/03/2016). In particular, INL stated once again that, in order to file the minutes at the territorial office and in light of what is established in art. 412 ter of the Civil Code, the union “must be in possession of specific representation powers”. According to INL, given that not all the collective agreements establish specific conciliation procedures, the solution of a self-declaration of the union regarding possession of the requirement of greater representation (to be adopted only in those cases in which trade union conciliation is performed according to specific contractual provisions) allows the inspectors to avoid technically complex audits and at the same time ensures union self-regulation in application of the regulations establishing it.