On 18 May 2023, the Italian Court of Cassation, criminal division, judgment no. 21153,ruled that ‘risk assessment is a specific function of the employer, which cannot be delegated even through delegating functions to another person and any failure by the RSPP to cooperate in the drafting of the Risk Assessment Document (Documento di Valutazione dei Rischi, “DVR” may, at most, give rise to concurrent but not exclusive liability of the latter’.
The facts of the case
The case stemmed from a work-related accident that occurred to an employee of a company who, while arranging a stack of pallets that had not been properly stacked, was struck – on the head and shoulder – by pallets falling to the ground, sustaining injuries that resulted in an illness lasting more than 40 days.
Both the Court of Vercelli and the Court of Appeal of Turin convicted the sole director and ‘employer for company safety purposes’ of the criminal office under Article 590 of the Italian Criminal Code (‘negligent personal injury’). The court considered that the director was guilty of negligence, carelessness, inexperience and failure to comply with the rules for the prevention of accidents at work and for not having assessed the risk inherent in the construction of the stack of pallets.
An appeal to the Italian Supreme Court was lodged against the Court of Appeal ruling, alleging a breach of the law in relation to the finding of criminal liability. Specifically, the appellant – i.e. the employer for company safety purposes – argued that the appointment of an RSPP exonerated him from any liability. The RSPP should have, among other things, (i) assessed the risks associated with the specific work activity based on the delegation responsibilities; (ii) trained employees; (ii) evaluated the risks associated with the specific activity and (iii) drafted the DVR.
The Italian Court of Cassation
The Italian Court of Cassation affirmed that the assessment of the risks to the health and safety of workers present within a company is one of the employer’s specific obligations. This obligation, established by Article 17 of Italian Legislative Decree no. 81/2008, is non-delegable. ‘Any failure by the RSPP to cooperate in the drafting of the DVR may, at most, give rise to concurrent but not exclusive liability of the latter’. The Court also clarified, on this point, that the RSPP will be liable where it is possible to trace an injurious event back to a dangerous circumstance that the RSPP should have known about and reported and, instead, failed to do so.
For all these reasons, the Court of Cassation held the appeal to be inadmissible as the ground of appeal was manifestly unfounded.
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In conclusion, it seems possible to be able to state that an employer for company safety purposes is criminally liable if it is ascertained that an injury at work is caused by a failure to carry out a preventive assessment of the risk as well as by a failure to adopt the relevant measures necessary to reduce or eliminate that risk.
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The definition of worker for safety purposes according to the Court of Cassation
The Court of Cassation, IV Criminal Section, in its ruling no. 22256 of 3 March 2021 (filed on 8 June), ruled on the existence of the requisites of interest and advantage of the entity in cases of culpable offences for violation of accident prevention regulations under Legislative Decree no. 231/01 on administrative liability of entities.
The case concerned a workplace accident involving a driver in a waste sorting plant, who got out of his vehicle while removing the cover of a container to unload the material coming from the sorted waste collection. The employee was hit by another worker’s forklift truck and suffered serious injuries.
The Court of First Instance and the Court of Appeal found the defendant employer guilty of the offence of culpable injury aggravated by breach of the rules on accident prevention. This was because they were held to be consequential to the infringement of the combined provisions of Articles 63 and 64 paragraph 1 of Italian Legislative Decree no. 81/2008 (respectively under the headings “Health and safety requirements” and “Employer’s obligations“) for the employer’s failure to organise a safe road system by using signs and road markings, regulating traffic in the external yard of the waste sorting plant, separating the traffic lanes, indicating the storage areas and the lanes intended for forklifts and pedestrians, and areas for manoeuvring vehicles.
The judges declared that the company was liable for an administrative offence (under Articles 5, paragraph 1, letter a) and 25-septies, paragraph 3) of Legislative Decree no. 231/2001), while recognising an extenuating circumstance, the company was ordered to pay an administrative fine (of €12,900).
According to the Court, the company was guilty of failing to assess the risk of injury resulting from possible interference between the drivers of the forklift trucks and the workers unloading the material. This liability stemmed from the reduction in the costs of the consultant’s work for the revision of the DUVRI (single document on the assessment of risk from interference) and the increase in the speed of production due to the failure to take the necessary measures.
An appeal was lodged against the Court of Appeal’s ruling.
The Court of Cassation clarified that (i) the concepts of interest and advantage must necessarily refer to the conduct and not the event and, (ii) they are alternatively applicable. The interest requirement must be assessed at the time of the fact, while the advantage requirement must be evaluated later, based on the effects practically derived from the offence committed.
The Court of Cassation specified that:
According to the Court of Cassation, the appealed ruling did not clarify the evidence from which it deduced the advantage obtained by the organisation in terms of cost savings and acceleration of the production process. In its opinion, the cost savings were small, and the company had generally complied with the accident prevention regulations.
For these reasons, the Court of Cassation upheld the Court of Appeal’s ruling insofar as it had recognised the employer’s liability as an individual. It annulled the ruling where it had identified the entity administrative liability and referred the case back to the relevant Court of Appeal in a different composition.
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The “Shared protocol for updating measures to combat and contain the spread of the SARS-CoV-2/COVID-19 virus in work environments” was signed on 6 April 2021. It requires workers who remained positive after 21 days of the appearance of COVID-19 symptoms to be readmitted to work only after receiving a negative molecular swab or antigenic swab carried out in a facility accredited or authorised by the healthcare service. The negative molecular certificate required for re-entry must be addressed to the company physician. With a circular dated 12 April, the Ministry of Health outlined the procedures to be performed for the return to work of employees who have contracted the virus. The company physician must carry out a preventive medical examination to confirm work suitability regardless of the length of absence due to illness for workers admitted to hospital. This will take place after submitting a negative swab certificate. Workers with less severe symptoms may return to work after a period of isolation of at least ten days from the onset of symptoms. They must provide a molecular test with a negative result performed after at least three symptom-free days. Workers who are positive but asymptomatic throughout the period, may return to work after a period of isolation of at least ten days from the positive swab, at the end of which a molecular test is performed with a negative result. Unless they can remote working, workers who are a close contact with a positive case must inform their GP to issue an illness certificate. In that case, the worker, after performing a ten-day quarantine from the last contact with the positive case, may be readmitted to work after undergoing a molecular or antigen swab, informing the employer through the company physician.
Decree Law no. 149/2020 ( “Ristori-bis Decree”), the Italian legislation has implemented Directive 2020/739 of 3 June last (the “Directive“). The latter has amended Annex III of Directive 2000/54/EC on the protection of workers from health risks and safety arising, or likely to arise, from exposure during normal work to biological agents identified in the document. The new Coronavirus (“Covid-19“) has been classified as an agent responsible for serious diseases in humans, presenting a significant risk to older workers and those with a previous or chronic illness. Covid-19 is included in the list of biological agents that can cause infectious diseases in humans (biological agent – risk group 3). As a result of the Directive implementation the Legislative Decree has been amended. 81/2008 ( Consolidated Law on health and safety at work). The requirements imposed on employers who carry out activities that expose workers to this risk become stricter. Priority is given to laboratories, veterinary services and industrial processes involving the use of or exposure to the biological agent. Other employers cannot be considered completely excluded, since, under art. 28 of Legislative Decree 81/2008, the assessment under art. 17 of the same decree must concern “all risks to workers’ safety and health.”
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With an order dated 1 July 2020, the Court of Treviso has stressed that the setting up of the internal Committee pursuant to article 13 of the Shared Protocol dated 14 March 2020 (subsequently updated last 24 April) for the implementation and the check of the rules established therein within the workplace must take place in each single local productive unit. If the company has different seats, it is not sufficient to set up a central committee.
The case at issue derives from a procedure under article 28 of the Workers’ Statute implemented by a trade union against a cleaning and sanitisation services company rendering its services inside hospitals. In particular, the trade union complained about the company’s anti-union behaviour upon the latter’s failure to set up, within the Treviso Hospital, the Committee for the implementation and the check of the rules under the “Shared Protocol regulating the measures for the containment of the spreading of the Covid-19 virus in the workplace”.
The company had limited itself to set up a single central Committee for the North-East headquarters to which, however, the RSA (i.e. the company level unions) and the RLS (i.e. the Workers’ Representative for Safety) Cisl of the Treviso Hospital neither belonged nor had been involved at all.
Finally, the trade union complained about the poor management of the health emergency since the check-ups on the state of health of the workers engaged in the cleaning services at the hospital had never taken place, even following their return from their sick leave.
In the opinion of the Court of Treviso the rule under the Shared Protocol as to the setting up of a Committee “within the company” for the implementation and the check of the internal protocol’s rules with “the participation of the company level unions and the RLS” must be read to the extent that the committees must be implemented in the specific territorial and environmental reality in which the company’s working related activities are placed. This “since it is the place where the actual and specific needs to be monitored, watched out for and solved in a shared manner arise”.
Therefore, the company’s behaviour, which not only fails to set up the Committees at local level, but also fails to involve the RSA of the territorial company seats in the setting up of the central Committee amounts to an anti-union behaviour since it harms union privileges as specifically foreseen and shaped by the anti-Covid regulations.
The rationale underpinning any such conclusion lies in the finding that the pandemic has had an irregular spreading throughout the Italian territory, thus requiring different actions and responses based on the specific dynamics taken locally as from the spreading of the coronavirus.
Finally, the Court has taken the opportunity to specify that the binding nature of the Shared Protocol derives from the fact that the latter has taken on the rank of primary source following its implementation by Prime Ministerial Decree of 26 April 2020.
Others insights related:
Occupational injuries: Employer liability is not automatic
Clarifications provided by INAIL in its Circular No. 22 of 20 May 2020, on Covid19-related illnesses
