The Supreme Court of Cassation, in its Judgment No. 8476/2023, clarifies the prerequisites for the delegation of safety that relieves the employer of the position of guarantor.
In complex organizations, delegation becomes an indispensable and irreplaceable management mechanism in all areas of corporate activity and, in particular, in the area of safety. The position of guarantor with regard to occupational safety and health is normally held by the employer, unless he has expressly and duly delegated another person to control and apply the safety measures implemented within the company.
The delegation, as the Court of Cassation clarifies, may take may take the form of a delegation of functions provided for in Article 16 of the T.U.S.L. or a management delegation provided for in Article 2381 of the Civil Code. In the first case, the delegating employer remains liable if he fails to exercise due control over the delegate's actions. Whereas in the second case, the employer only discharges his duty through verification based on intra-company information flows.
The Court Case
The case concerns the employer's liability for an accident occurring to a worker.
The judges on the merits had considered the employer's liability to exist, attributing this liability to the violation of the control obligations provided for in Article 16 of the T.U.S.L. (so-called delegation of functions).
However, the employer, in his capacity as chairman and director, claimed that the board of directors had delegated, in the specific field of safety, the entire management to one of the directors and that the responsibility for the accident was attributable only to him.
The Court, having examined the powers and attributions conferred, concluded that the identification of the dutiful conduct should be assessed with reference to the discipline of management delegation, as provided for by the Civil Code, as opposed to the delegation of functions identified by the judges of merit.
The Court of Cassation annulled the employer’s conviction, referring to the Court of Appeal the task of investigating the nature of the delegation "for the purposes of identifying the employer in a preventative sense and thus identifying the perimeter of the control duties remaining with the delegating party".
Delegation of functions and management delegation: clarifications by the Supreme Court
Article 16 of the T.U.S.L., which regulates the delegation of functions, establishes the existence of an obligation for the delegating employer to supervise the delegatee's proper performance of the transferred functions. Even after the delegation has been conferred, the delegating employer still has the duty of high vigilance as to the proper performance by the delegate of the transferred duties. In the event of breach of this obligation, the delegating party may be held criminally liable.
As clarified by the Supreme Court, 'whereas in the case of the delegation of functions contemplated by Article 16 of Legislative Decree no. 81/2008, the transfer of certain powers and duties of a preventive nature is emphasised, in the case of management delegation, criteria for the allocation of roles and responsibilities among directors in a corporate context characterised by more or less articulated structures are emphasised'.
While in the case of delegation of functions the delegating employer remains liable if it does not fulfil its obligation to supervise the delegate's work, in the case of management delegation, the delegating employer can only be configured as having a duty to verify the flow of information and the general organisational structure, as well as a power to intervene with reference to the adoption of individual specific measures in the event that it becomes aware of prejudicial facts, i.e. risk situations that are not adequately governed.
In fact, in relation to managerial delegation, the decision-making and spending powers connected to the employer's function, which belongs to a plurality of subjects, are concentrated in the hands of only a few of them, even when they relate to occupational safety.
The judgment is relevant in that it allows us to note that the assessment of the characteristics of the act of delegation is necessarily bound to be reflected on the content of the position of guarantee and the imputation of criminal liability.