Labour Criminal Law

High technical skills are now an essential requirement in a multitude of cases concerning criminal proceedings, such as events related to crimes to protect health and safety in the workplace, environmental crimes or even corporate and bankruptcy crimes. In this context, “scientific knowledge” is utterly crucial for all the figures involved, from lawyers to prosecutors, to judges.

Having to deal with issues that are very technical and far from legal competence per se puts criminal law operators in the condition of expanding their culture and training. They also have to rely on additional specialists for specific subjects, appointing them as experts or partisan consultants during trials.

And it is precisely the confrontation between legal professionals and “technical” experts – through the hearings of the latter and the acquisition of their reports – that has generated a complex debate on the role of scientific evidence in law.

What does scientific proof in the judicial field mean?

The Legislative Decree n. 231/2001, which introduced the “regulation of the administrative liability of legal persons, companies and associations, including those without legal personality, under article 11 of Law n.300, September 29, 2000”, turns twenty.

It’s a crucial anniversary because this legislation has allowed the Italian legal system to overcome the principle of “societas delinquere non potest”, that is, “a company cannot commit a crime”.

Although the Legislative Decree n. 231/2001 was initially applied only to some willful crimes, over time, the legislator has expanded its range of action by including further “predicate offenses”, i.e., the types of offenses that can cause the body’s liability. To date, this particular category includes about five hundred heterogeneous offenses, such as crimes against the Public Administration (the first to be introduced), corporate and environmental crimes, crimes related to accidents at work, IT crimes and, more recently, tax crimes.

The extension of the applicability of the Legislative Decree n. 231/2001 has sensitized companies – especially those of medium-large size – to implement efficient internal compliance systems resulting from adopting specific Organizational Models. The latter must be constantly updated while appointing the Supervisory Body guarantees the verification of the application by the model’s recipients, as well as the model’s adequacy and effectiveness.

Organizational Models: a valuable tool for avoiding the responsibilities of a crime under the Legislative Decree n. 231/2001

Companies that adopt Organizational Models have an essential tool at their disposal to avoid liability for a crime according to the Legislative Decree n. 231/2001. Several cases addressed by the jurisprudence and ending with the acquittal of the company precisely because its Organizational Model was valid confirm such a thesis. However, this is a topic that we will discuss more thoroughly in the future.

It is also important to point out that Confindustria recently published its updated guidelines regarding the creation of Organizational Models, hoping to “inspire companies in the construction of their model and, for the jurisprudence, to enhance the organizational efforts made by the companies to align themselves with the provisions of the Decree 231.”

The aforementioned Supervisory Body actively deals with the Legislative Decree n. 231/2001, which is why more and more medium-large companies are equipping themselves with such entity, in view of the growing attention the case law shows in relation to the Body’s centrality in internal control systems.

More specifically, the Supervisory Body receives the so-called “information flows” from the various corporate functions. It then sends the reports to the top management, the Board of Directors and the Board of Statutory Advisors. Hence, the Supervisory Body provides these entities with a constantly updated representation of the state of health of the corporate control system.

It is also worth reporting a recent sentence by the Court of Milan on the well-known Monte dei Paschi di Siena case, which saw the bank’s Chairman and Chief Executive Officer being convicted of false corporate communications and stock manipulation. The fine was 800 thousand euros.

The court was unequivocal regarding the liability of the entity, explaining that, in the analyzed timeframe, “the Supervisory Body, despite having penetrating powers of initiative and control, […] substantially omitted the necessary investigations (which were functional to the prevention of repeated and undisturbed crimes), despite the relevance of the issue as per the inspections of the Bank of Italy (of which the SB was aware) and has even risen to judicial challenge blaming BMPS[…]”

And again: “The Supervisory Body witnessed the events passively, limiting itself to insignificant acknowledgments, in the spiraling of events (from the alarming press reports to the judicial debacle) that a more prudent exercise of control would have averted. Thus, unfortunately, it was not and all that remains is to detect the body’s omitted (or at least insufficient) supervision, which founds the organizational fault referred to in article 6, Legislative Decree n. 231/2001.”

This sentence again confirms the centrality of the Supervisory Body in monitoring and verifying the adequacy and effectiveness of the corporate compliance system.

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We recently investigated the duties and responsibilities of the employer in the event of an accident in the workplace. Such issue was part of a broader topic related to the guarantees and duties in the field of Work Safety. We will now explore the subject matter again by discussing the security positions of the employer, the manager and the person in charge (supervisor). 

First of all, we should remember that an accident in the workplace always falls within the sphere of responsibility of a specific figure: this will be the supervisor if the accident is related to the physical execution of the job; the manager if the accident is connected to the work management; and finally the employer if the accident results from management decision coming from the top of the company. These three figures are all responsible for workplace safety, and this responsibility is “de facto”, i.e., valid even when there is no specific appointment or delegation.

The position of supervision and control is always a mandatory obligation for the employer, and if they have delegated another person to apply the rules for the protection of the health and safety of the workers, the employer will always be responsible for ensuring that such tasks are transferred and appropriately applied. 

In this sense, a short order issued in 2019 by the VII Criminal Section of the Supreme Court provides confirmation following the appeal lodged by an employer who, following an accident in the workplace, defended himself by claiming to have delegated the organizational profiles related to safety to other company figures. 

The appeal in question was declared inadmissible because it was based on an unfounded reason, since the employer is – by nature – obliged to comply with safety requirements and responsible for them. 

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The guarantees of the manager and the person in charge are based on the “de facto” implementation of preventive tasks 

Having clarified this, it is still vital to underline that there are differences between the security position of the employer and that of the manager and supervisor. 

In terms of Labor Criminal Law, the manager is considered the figure who performs the necessary tasks to prevent accidents at work regardless of an actual employment contract as an executive. 

On the contrary, a professional figure who – despite having a managerial contract – does not manage workers and has no executive power over the employees cannot be considered a manager as far as Labor Criminal Law is concerned. 

We can apply the same principle to the supervisor, who is the figure appointed to supervise all the activities performed by a group of workers of whom the supervisor is in charge. This figure is responsible for implementing all the necessary prevention and protection measures within their specific duties and competencies. More specifically, the supervisor must objectively supervise the implementation of safety requirements and subjectively monitor compliance with the provisions by all workers. 

In practical terms, the person in charge will supervise – for example – the use of the necessary PPE, implement the control and maintenance plans on the machines, report non-compliance or improper behaviors to the supervisors and check for any unexpected risks in the workplace. On the other hand, the supervisor is not responsible for adopting and organizing preventive measures unless this task is expressly stated in a specific proxy.

As for the manager, they will be in charge of managing the claim attributable to the detail of the work management – as mentioned at the beginning of this article and as expressly indicated by the Criminal Court of Cassation, Section 4, August 2016, n.33630. 

According to Italian law, all employers must insure their workers against accidents, injuries, and occupational diseases that could be contracted during their profession.

More specifically, the National Institute for Insurance against Accidents at Work (INAIL) is responsible for covering any injury that:

• Occurred for a violent cause, i.e., generated by external aggressions that damage the worker’s psychophysical integrity. This category typically covers injuries caused by machinery, equipment or toxic and noxious substances.
• Occurred during work, i.e., derived from the existence of a cause-and-effect relationship between the work activities and the injury that affects the worker.
• Resulted in death, permanent disability or total temporary disability of the worker for three days, excluding the day of the accident.

It is emphasized that, whereas an accident occurs with the machine and this accident cannot be cured within three days of the event, the employer must obligatorily forward the accident report/communication to INAIL within a maximum of two days from receiving the medical certificate (art.53 DPR 1124/1965). This report must instead take place within twenty-four hours from the event if the accident resulted in the worker’s death.

Before being more specific about the merits of the actions that the employer must perform in the event of a work accident happening to one of his workers, it is essential to review the definition of this specific occurrence.

What is a work accident?

Although there is no actual regulatory definition of work accidents, it is possible to refer to the Consolidate Law (T.U.) of the provisions on compulsory insurance (Presidential Decree no. 1124 of June 30, 1965) later amended by the Legislative Decree no. 38/2000.

From the T.U. it should be noted that “The insurance includes all cases of accidents occurring due to violent causes at work, resulting in an absolute or temporary work incapacity involving absence from work for longer than three days.”

As you can very well understand, a work accident must therefore be interpreted as any harmful event that damages the psychophysical integrity of an operator during the ordinary course of their profession.

Essential elements of work accidents will therefore include the nefarious event, the worker’s physical trauma, the act of working and the violent cause.

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What the employer must do when an employee gets injured

If an employee is a victim of a work accident, the employer is subjected to specific obligations.

The moment they learn of the harmful event, the employer must – as already mentioned – notify INAIL through a specific report or communication. This is required by Article 53 of the Consolidated Law on compulsory insurance provisions (as well as by the provisions about communication, from art.18, co. 1, letter R, legislative decree n.81 of 2008 on workplace safety).

This rule emphasizes that the obligation always falls on the employer, “regardless of any assessment regarding the recurrence of the legal extremes for indemnity.”

The accident report will change according to the extent of the accident and the prognosis of the worker who suffered the harmful event.

In this sense, the employer will have to proceed as follows:

• He might only communicate the accident if the event has resulted in a prognosis according to which the worker will not be able to carry out their work for at least one day (following that of the accident) or extended up to three days. The obligation to communicate (as required by art.18, co.1, letter R) will, in this case, have exclusively informative and statistical purposeful for the National Information System for Prevention in the Workplace (SINP). The rule will be in force every time an accident occurs. The accident report alone must be submitted within 48 hours from receiving the medical certificate.
• He will have to report the accident if the worker is subject to a prognosis longer than three days (in addition to the day of the event). Unlike the previous, straightforward communication, in this case the report will be essential for the insurance protection to operate and for INAIL to indemnify the accident. At the same time, the complaint will also fulfill the obligation to communicate the previous point. The report must be made within 48 hours if the prognosis is longer than three days (beyond that of the accident), or within 24 hours since the event if the work accident has caused death or danger of death for the employee.

It is also crucial to remember that the employer must make the report electronically by filling in the “4 bis R.A.” form available on the INAIL website. It is also important to specify that, if the employer does not report the accident or communicate it too late, the legislator may impose sanctions, as per Article 53 of the Consolidated Law on Finance. and art. 18, paragraph 1, letter r), of Legislative Decree 81/2008 regarding the protection of health and safety in the workplace.

Delegating functions in the field of workplace safety

Article 16 of the Consolidated Law on Occupational Safety indicates that the employer may delegate some of their functions according to specific limits and conditions:

1. That they result from a written document bearing a specific date.
2. That the delegate possesses all the requisites of professionalism and experience required by the specific nature of the delegated functions.
3. That they attribute to the delegate all the powers of organization, management and control required by the specific nature of the delegated functions.
4. That they attribute to the delegate the spending autonomy necessary to performing the delegated functions.
5. That the delegation is accepted and signed by the delegate.

However, it is critical to keep in mind that the employer will not be able to delegate the risk assessment activities with consequent processing of the document provided for, in Article 28, nor the designation of the Head of the Risk Prevention and Protection Service.

The employer will directly fulfill these obligations.

As mentioned, the delegation of specific functions must also be drawn up in full compliance with the regulatory principles enshrined in Article 16, such as the written form, the particular date and the autonomy of spending. The latter refers to the fact that the delegated appointed by the employer will be able to autonomously manage the financial resources necessary to adequately carry out the tasks that they have been entrusted with.

Ultimately, the delegation of functions in the field of occupational safety must comply with specific requirements to be effective:

• It must be formal, direct, clear, detailed in substance, and made known so as to be understood unequivocally by the employees.
• It must be explicitly accepted by the delegate in charge, in writing and on documentation bearing a specific date.
• The delegate in question must possess the professional skills and experience necessary to best perform the functions required by the employer.

The most significant benefit of the delegation of functions in work safety is to make the company’s work simpler and more effective. Therefore, it should not be interpreted as a discharge or responsibility but, on the contrary, as a collaborative relationship, a virtuous interaction with the sole goal of improving safety in the workplace.

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The legislation on the prevention of accidents in the workplace aims to establish a network of guarantors who can deal in a timely and effective manner with the most common and frequent sources of danger to operators.

Specifically, we are faced with an entire network of subjects with different functions: the employer, the delegate, the HSE, the manager, the person in charge, the competent doctor, the planning coordinator, the coordinator for the execution and so on, to create a sort of complementarity between different figures, each with its area of ​​competence and with responsibility if the accident occurs.

There is a “decreasing competence” between the three main actors of workplace safety. These actors are the employer (who is responsible for the basic choices of the prevention system and unfortunate events caused by primary deficiencies of the company’s security system), the manager (who has the task of implementing the directives of the employer and who is liable for the effects of inadequate implementation of the company’s security system) and the person in charge. According to the most recent jurisprudence of legitimacy, the latter “supervises the activities, implements the directives received by checking their execution, on the basis and within the limits of hierarchical and functional powers adequate to the nature of the assignment”.

The person in charge is called to supervise the work activity and could only be charged with the unfortunate events resulting from violations of the rules in place in the company or, alternatively, extraordinary danger factors occurring during a professional performance.

Essentially, the person in charge has the primary task of controlling the executive risks related to the activity.

The obligations of the person in charge according to Legislative Decree 81/2008

According to art. 19 of Legislative Decree 81/2008, the duties of the person in charge include:

1. To supervise the workers’ compliance with their legal obligations and company provisions on health and safety at work, the use of collective protective equipment and personal protective equipment made available and, if non-compliance occurs, to inform their direct superiors.
2. To verify that only workers who have received adequate instructions can access areas that can expose them to severe and specific risk.
3. To request compliance with the measures to control risk situations if an emergency occurs and give appropriate instructions so that workers leave the workplace or the dangerous area in the event of severe, immediate and inevitable danger.
4. To inform workers exposed to the risk of severe and immediate danger as soon as possible about the risk itself, and to make them aware about the protection measures taken or to be taken.
5. Except for duly motivated exceptions, to refrain from requiring workers to resume their activities in a work situation where serious and immediate danger persists.
6. To promptly report to the employer or manager the deficiencies of tools, work equipment, personal protective equipment, and any other dangerous conditions that occur during work, he becomes aware of based on the training received.
7. To attend specific training courses under Article 37.

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The “executive risk” of the person in charge in the field of workplace safety

The person in charge is responsible for the so-called “executive risk”, which reverberates in a complex and articulated supervisory activity, both passive and active.

By passive supervision, we mean the ability of this figure to ensure that operators use the various PPE necessary for the activity and observe the safety measures provided (for example, the prohibition of access to certain areas). On the other hand, active supervision means communicating to the employer any dangerous conditions that occur during the performance of the activities. It will then be the employer’s duty to evaluate and eventually resolve the problem encountered by the person in charge.

In addition to the obligations of continuous supervision, the person in charge must then respond to situations of occasional supervision where conditions of “emergency” or “serious or immediate danger” are generated (Article 19 of Legislative Decree 81/2008). Among these, there are extraordinary events that could cause jeopardizing the safety and health of workers.

Since the person in charge is the “immediate guarantor” of the operators, it will be their task to deal with sudden situations and indicate the emergency procedures and measures to be followed. The most obvious example is the immediate abandonment of the area. At the same time, this figure will have to inform employers about the presence of the emergency risk.

The training obligation of the person in charge and the role played in their responsibility

It is essential to highlight the role that the supervisor’s training plays in attributing responsibilities that could derive from an unfortunate or emergency event in the workplace.

The last letter of art. 19 of Legislative Decree 81/2008, relating to the duties of the person in charge, emphasizes that the latter must “attend special training courses under the provisions of Article 37”.

Article 37 requires the employer to provide workers with complete and exhaustive (or, more specifically, “sufficient and adequate”) training on the subject of safety in the workplace. Particular reference must be dedicated to the concepts of risk, damage, prevention, protection, organization of company prevention, rights and duties of the various company subjects, supervisory bodies, control, assistance. The training will also focus on the duty-related risks, possible damage and the consequent measures and procedures of prevention and protection typical of the sector to which the company belongs.

The training received by the person in charge will be directly linked to their responsibility in the event of an accident in the workplace, as the specific instruction gives effectiveness to the function covered by the subject and outlines the type of risk that the latter is capable of recognizing “based on the training received.”

The “de facto person in charge” and their position of guarantee

Finally, it is worth spending a few words on the guarantee position of the “de facto” person in charge of workplace safety.

The “de facto person in charge” is the person who, even in the absence of an official office or appointment, holds a role that can be hierarchically traced back to the person in charge (according to the principle of effectiveness). This person is then responsible for all the charges deriving from his position.

A practical example? The worker who gives directives or orders to other employees, based on orders and instructions received from a supervisor (such as the employer), and whose directions other operators are accustomed to obeying.

For this particular figure, specific training is also provided (for a total of eight hours to be updated every five years) as required by art. 37 of Legislative Decree 81/2008.

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