In a civil context, governed by safety procedures, the connection between role and responsibility should not be underestimated, and above all the identification of the latter as the object of dispute.
In order to better explain this concept, we will explain some broad lines derived from practical cases and discussed in court. The Rspp and the Employer, two of the important figures in a company context in terms of safety in the workplace, may be the result, where there is a lack of cooperation, of negligence in carrying out their activities in the field of prevention and implementation of the same and criminal liability for reasons related to their role.
In order to identify the responsibilities of the RSPP in the event that the worker, during the performance of his activities, becomes the victim of an accident, it is left to the judge to assess the industriousness and possible negligence of the person responsible who, in violation of the obligations imposed by law, has failed to communicate the activities for the purpose of reducing the risk that led to the harmful event.
In some circumstances, the Supreme Court of Cassation has recalled that the person in charge of the prevention and protection service is liable, possibly in conjunction with the employer, even if he has committed a technical error in assessing the risks.
Having said that, there is a difference to be stressed (clarification by the Supreme Court itself in one of the rulings issued). The necessary activity of reporting by the RSPP to the employer is quite different from the implementation of safety measures reported because the figure itself is not obliged to implement the measures reported nor to check that the measures are implemented because the figure as such plays an advisory role unless it is framed in the company with a management role.
But there is more. According to art. 2 letter B) of Legislative Decree 81/08, the role of the employer as the person responsible for the safety of workers is framed. “the person who holds the employment relationship with the worker or, in any case, the person who, according to the type and structure of the organisation within which the worker works, is responsible for the organisation itself or for the production unit as he/she exercises decision-making and spending powers. In the public administrations referred to in Article 1(2) of Legislative Decree no. 165 of 30 March 2001, the employer shall mean the manager vested with management powers, or the non-managerial official, only where the latter is in charge of an office with managerial autonomy, identified by the governing body of the individual administrations, taking into account the location and functional scope of the offices in which the activity is carried out, and vested with autonomous decision-making and spending powers.
In the event of failure to identify the employer, or if the employer is not identified in accordance with the above criteria, the employer is the top management body itself.
Another figure we have often come across is the supervisor, i.e. the person we mentioned earlier as a figure with a ‘management role’. In the field of safety at work, the description of this figure is also correctly carried out by Article 2 of Legislative Decree 81/08 letter e)
“a person who, by reason of his professional skills and within the limits of hierarchical and functional powers appropriate to the nature of the task conferred on him, supervises the work activity and ensures the implementation of the directives received, monitoring their correct implementation by the workers and exercising a functional power of initiative”.
It should be clarified, however, that the figure of the person in charge does not guarantee the transfer of the obligations and responsibilities incumbent on the employer, unless there is “rigorous evidence” of delegation that gives full powers and decision-making autonomy.
(Sez. 4, n. 24055 of 01/04/2004 – dep. 26/05/2004, Cecchini, Rv. 22858701)
Source: Public consultation registers Court of Cassation