No workplace is too far away for the employer's liability

-         Roberto Tirone & Manuel Deamici -


How far should the employer's control go under workplace safety regulations?

A recent judgment of the Italian Supreme Court (no. 35510/2021) affirmed that Italian employers are liable also when workplaces are abroad.

The sentence has been issued by the Italian Supreme Court at the end of a proceeding aimed to ascertain the criminal liability of the person responsible for safety in the workplace, in this case a construction site, for  the death of a worker.

The defendants in the criminal proceedings were the legal representatives of the Italian companies, which were contractor and sub-contractor for the construction, together with other Chinese companies, of a ship in a Chinese shipyard located off the Indian coast.

During the construction operations, one of the workers, while using a ladder without a cage, lost his balance and fell to the ground, dying shortly afterwards. This happened because the worker did not have the necessary accident prevention equipment or at least the necessary training., .

 Drawing inspiration from this episode, the Italian Supreme Court  caught the opportunity to express a general principle that characterizes the Italian criminal jurisdiction, specifying how the Italian jurisdiction intervenes whenever even a part of the criminally conduct relevant  has been realized in Italy.

In those case, the three defendants were charged with the conduct of failure to train and inform the worker, an obligation which employers should have fulfilled well before the start of the worksite activity and, therefore, when it was still in Italian territory. This would have been the only way to prevent any risk of injury.

The Supreme Court states that the employer who instructs an employee to carry out certain work activities outside his company, has the obligation to verify the safety of the workplace, to assess the risks present, to provide the employee with the necessary and appropriate tools for individual protection, to train and inform him adequately on the specific risks of work in that place and to ensure compliance with the provisions of the company on the use of safety devices. Starting from this point, it is irrelevant that the “outside the company” is not on the national territory.

Starting from what the Supreme Court stated, it follows that the system of prevention directly related to the legislation on safety in the workplace is necessarily to be extended beyond the national territorial boundaries, with direct application of the same system of accident prevention also to employees working abroad.

If, in fact, negligent offences committed abroad fall within the jurisdiction of the Italian criminal judge, as stated in the decision of the Italian Supreme Court, the same extension must also be applied to the responsibility of the company, where an advantage is identified.

A direct consequence of the above is that the Italian company has to extend its procedures for managing safety in the workplace to foreign territory if it wishes to avoid or reduce its responsibility under Legislative Decree 231/2001.

This direct consequence of the words of the Supreme Court, however, leads to the problem, which is not easy to solve, of the application of Italian regulations in a foreign territory and the possible conflict between different regulations, or rather which regulations to apply when the competing regulations provide for different degrees of severity in the application of the measures.

In fact, even if we could overlooking the cases of workers operating within the borders of the European Union, where the situation is clearly easier to manage, there remains the problem of workers operating in non-European countries.

With reference to such countries, in the light of the Supreme Court’s ruling, it is believed that the best solution to adopt for the purposes of Legislative Decrees 231/2001 and 81/2008 (the Italian regulations governing the responsibility of employers and safety in the workplace) is the most prudential one, thus applying the greatest possible protection for the worker: this means that where the "host" country has lower safety standards than Italy, the Italian company shall verify the correct application of its own standards, albeit in foreign territory.

Where, on the other hand, the standards of prevention are comparable, even though they are achieved with different measures, a possible solution could be to apply the measures foreseen in the country where the workplace is located.

However, the important thing to bear in mind is that the verification of the correctness and slavish application of the prevention techniques foreseen must be carried out case by case by the employer, with the appropriate technical support.

Only by carrying out this activity shall the employer be able to avoid criminal liability ascribed to him in the event of the commission of one of the offences included in Legislative Decree no. 231/2001.