Contribution by attorneys Niccolò Medica and Antonio Vigliotti published in N&T Plus Diritto – Il Sole 24ORE.

The Court of Cassation, with judgment no. 35652 of 29 September 2021 issued by the fourth criminal section, has returned to the issue of the liability of the subject delegated by the company to protect health and safety in the workplace.

Legislative Decree no. 81 of 9 April 2008, in article 16, provides that the employer may delegate its functions regarding the protection of health and safety at work, with the sole exception of those listed in article 17 of the decree itself.

In this manner, therefore, the delegate assumes powers and responsibilities that would be proper to the delegating party.

The employer remains, however, obligated, as provided by the aforementioned article 16, to supervise the effective and correct performance, by the delegated subject, of the transferred functions.

In the case in question, which concerned an injury suffered by an employee of a company, the Court of Appeal of Florence had found the delegate liable, considering the crime of negligent personal injury to be established against the same subject, as such person, despite being aware of a safety issue, had failed to adopt appropriate measures.

In response to the appeal filed by the safety delegate, the Court of Cassation recalled the precedent of the United Sections no. 38343 of 18 September 2014 (the so-called “ThyssenKrupp”), according to which, “in matters of workplace injuries, the obligations of prevention, insurance and supervision incumbent upon the employer may be transferred with the consequent assumption by the delegate of the position of guarantee that belongs to the delegating party, provided that the relevant act of delegation ex art. 16 d.lg. no. 81 of 2008 concerns a well-defined area and not the entire company management, is express and effective, unequivocal and invests a subject qualified by professionalism and experience who is endowed with the relative powers of organization, management, control and expenditure“.

Reversing the decision of the Court of Appeal of Florence, the Supreme Court granted the appeal of the safety delegate, having found that the issues relating to safety transcended the delegated powers and required an expenditure commitment exceeding the limits established by the delegation, with the consequent loss, among other things, of the exonerating effect of the delegation itself for the employer.