DDL vs RSPP

The responsibility of the DdL in the event of a lack of diligence by the RSPP

This ruling from the Court of Cassation is short and concise to reiterate a position now consolidated in the jurisprudence of legitimacy.

The Supreme Court has returned to express its opinion on a topic that has already been the subject of its previous expressions, namely the question of whether and to what extent it affects the employer's liability for having violated the provisions on health and safety at work the less than diligent behavior of the prevention and protection service manager (RSPP) that he himself chose and appointed even if he has all the training, ability and professionalism requirements required by the current legal regulations regarding health and safety at work and therefore in the absence of a culpa in eligendo.

The RSPP is a consultant of the employer, as the Supreme Court has repeatedly supported, indelegably called to collaborate with the same in identifying the risks connected to the work activities carried out in the company and to provide the appropriate technical indications to eliminate or reduce them to a minimum. .

He was also called to answer several times in conjunction with the employer for failing to report safety deficiencies which then led to workplace accidents in the company. However, the appointment of RSPP, the Supreme Court reiterated in this ruling, does not determine an effective delegation of functions and, therefore, is not sufficient to relieve the employer and managers from their respective responsibilities for the violation of workplace safety obligations and for any accidents that should derive from them.

It is in light of this general principle that the Supreme Court therefore declared inadmissible the appeal brought forward by an employer who had requested the annulment of the Court sentence with which he had been convicted and who had based his request on the fact of have appointed an expert RSPP, capable and equipped with all the requirements required by the safety regulations.

THE CASE, THE APPEAL IN CASSATION AND THE REASONS

The Court sentenced the employer of a company to a fine of €4.000,00 in relation to the crimes referred to in the articles. 181, paragraph 2, and 219, paragraph 1, sub a, of Legislative Decree no. 81/2008, 168, paragraph 2, and 170, paragraph 1, sub a, of Legislative Decree no. 81/2008.

The accused appealed to the Supreme Court, citing some reasons. He argued that the Court had limited itself to recalling the principles relating to the appointment of the security manager, without concretely analyzing the existence of the psychological element of the crime charged against him. In fact, the accusation had accused him of failing to update the risk assessment vibration, as well as the inadequacy of the risk assessment relating to the manual handling of loads. The same, underlining that he had appointed a person in charge of the prevention and protection service, with extensive and proven skills in the matter, argued that the employer cannot carry out the tasks in question alone, as he does not have the required specific preparation , and therefore he must rely on an expert as he did in the case in question.

The accused therefore, lacking in his conduct the subjective element of the crime for having simply implemented the calculations of the person in charge of the prevention and protection service and not having to pay for the incomplete diligence of the professional in charge, identified, moreover, without any culpa in eligendo being equipped with adequate professional qualifications, he asked the Court of Cassation to annul the contested sentence.

DECISIONS IN LAW OF THE COURT OF CASSATION

The appeal was declared inadmissible by the Court of Cassation due to the manifest unfoundedness of the reason as well as being extremely generic, limiting itself to maintaining that the mere appointment of the person in charge of the prevention and protection service would exclude the subjective element.

The Court itself underlined how the contested sentence had correctly applied the jurisprudence of legitimacy, having maintained that the appointment of the person in charge of the prevention and protection service does not exempt the employer from the obligations dictated for the prevention of accidents at work.

The jurisprudence of the Court of Cassation, in fact, on this point is consistent in maintaining that the person in charge of the prevention and protection service plays a role as consultant on accident prevention matters for the employer and is devoid of effective decision-making power and in deeming the appointment of the responsible for the prevention and protection service, to exclude the liability of the employer.

"The mere designation of the person responsible for the prevention and protection service”, the Supreme Court thus concluded, “does not constitute a delegation of functions and is therefore not sufficient to relieve the employer and managers from their respective responsibilities in terms of violation of the obligations dictated for the prevention of accidents at work". Therefore, as a result of the inadmissibility of the appeal, it sentenced the appellant to pay the sum of €2.000 to the Fines Fund and the costs of the proceedings.

We have reported the entire article on Punto Sure by the excellent Gerardo Porreca