Retaliatory dismissal following whistleblowing: the burden of proof lies with the employer

The Milan Labour Court, in judgment no. 1680/2025, applied whistleblowing legislation for the first time with specific reference to Article 17 of Legislative Decree 24/2023.

The case brought before the judges concerned the dismissal "for just cause" of an employee, which the employee considered retaliatory and therefore challenged. 

The basis of the defense and therefore of the argument that the dismissal was retaliatory in nature was the difficult relationship between the employee and the company, the complaints he had raised against his manager in the months prior to his dismissal, and finally the whistleblowing report submitted just one month earlier.

In particular, in the months prior to his dismissal, specifically in March/April 2024, the complainant had first completed a Global Survey as part of an investigation carried out by the Human Resources Department, in which he had made some negative remarks about his manager, which, although anonymous, had requested the inclusion of certain data that could be used to identify the signatories.

Not surprisingly, in early April, the complainant's manager informed him that she had become aware of the negative assessment expressed in the Global Survey, and from then on, their relationship deteriorated.

For these reasons, on April 22, the complainant submitted a whistleblowing report through the appropriate channels made available by the Company.

On May 9, he received a letter of disciplinary action based on several elements.

Subsequently, on May 16, the complainant received a letter of dismissal for just cause with immediate effect and without notice.

For these reasons, given the unusual nature of the events, their proximity in time, and the absolute groundlessness of the elements on which the disciplinary complaint and subsequent dismissal were based, the complainant challenged the latter, considering it to be retaliatory.

The Labour Court of Milan upheld the complaint, pointing out that, with regard to the burden of proof in cases of retaliatory dismissal, Legislative Decree 24/2023 had recently been enacted in implementation of the European directive on whistleblowing.

In particular, pursuant to Article 17 of Legislative Decree 24/2023, “the burden of proving that such conduct or acts are motivated by reasons unrelated to the report, public disclosure, or complaint lies with the person who committed them.”

Therefore, the employer has the burden of proving that dismissal or other retaliatory measures were not taken as a result of whistleblowing.

On the basis of this legislation, the court ruled that the evidence, and specifically the temporal proximity of the events (the Global Survey and the whistleblowing report shortly before it) as well as the elements brought by the employer in support of the legitimacy of the dismissal, did not allow the whistleblowing report to be considered unrelated to the dismissal but, on the contrary, constituted its cause, an element that characterizes the retaliatory nature of the dismissal.

Consequently, the Court declared the dismissal null and void and, as a result, ordered the employer to immediately reinstate the worker.