Safety at work: requirements for the valid delegation of the prevention, insurance and surveillance obligations
Case ref: Court of Cassation, Criminal Section, 20 February 2020, no. 6564
On the subject of accidents at work, the employer may delegate the obligations of prevention, insurance and surveillance to a representative, who then takes over the position of warranty.
However, without prejudice to the supervisory obligations, the suitability of the mandate to exempt the employer from liability depends on the characteristics of the mandate and the skills of the representative.
The above was confirmed by the Court of Cassation, with the recent judgment no. 6564 of 20 February 2020.
In particular, according to the Judges, in order for the mandate to be valid and suitable, it must be «express, unequivocal and certain» and appoint «a technically capable person, with the necessary technical knowledge and the relevant decision-making and intervention powers», without prejudice, in any case, to the employer’s obligation to «supervise and check that the representative uses the mandate correctly, as prescribed by law».
In the absence of such requirements, the employer is responsible for all resulting damage and injury.
And in fact, the Supreme Court mentions that «the particular characteristics that the mandate must have shall be consistent with the role of the employer and the responsibilities that derive from it as guarantor of the physical safety and protection of its employees (referred to in Article 2087 of the Civil Code), with the consequence that, if he does not comply with the obligations of protection, the damage caused is correctly levied at him by virtue of the response mechanism provided for in Article 40(2) of the Criminal Code».
In the case in point, the Court of Appeal ruled out the suitability of the power of attorney granted to the representative to exempt the employer from liability, since «it does not meet the requirements of Article 16 of Legislative Decree no. 81 of 2008, such as the attribution of the powers of organisation and management necessary to carry out the assignment, the autonomy of expenditure and the written acceptance by the representative. Moreover, the deed was signed only by the Managing Director».
The Court of Cassation, with the ruling in question, shared the reasoning of the Court of Appeal on the unsuitability of the delegation of powers, noting that the deed of appointment «did not provide for the recognition of any autonomy in incurring expenses, nor the ability to place orders for supplies and maintenance, but exclusively in execution of framework contracts already entered into by officers of the company and, therefore, the role was purely an executive one».
The representative therefore did not have any spending power and had a purely executive role with respect to what had already been decided by the Company.
Hence, the Supreme Court concluded that the responsibility lay with the employer «to verify the inadequacy of the structures, in order to prevent employees from suffering injury in the areas frequented by them».