Many enterpreneurs may not think that the foreign posting of workers exposes the top managers of the company and the company itself to important criminal risks pursuant to the Legislative Decree 231/2001. The following summarizes the type of risks one may incur, the related criminal liabilities, how to minimise the risks as well as the integration of a special section in the so-called MOG 231 with qualified support.
The “neglected risk” resulting from foreign posting
Recent and well-established jurisprudential pronouncements defined very clear parameters under which the Italian criminal jurisdiction exists and also the criminal liability of the top managers of the company and the company itself, in case of:
- Incident or disease;
- Injury or death of employees sent on business route;
- Business trip;
- Posting or contract works abroad.
The recent pandemics, terrorist attacks, international tension and ever more widespread war episodes in rapid and constant evolution made current a topic which was neglected too often or even ignored completely by the business compliance of companies. However, these companies are the ones which have employees abroad in different and often dangerous situations on a daily basis.
Neglecting or ignoring such risks exposes not only and primarily posted workers to consequences for their personal safety, but even the top managers of the company and the company itself to possible serious responsibilities.
Type of risks
In particular the top managers of the company may be liable to:
- Crimes of negligent injury or negligent murder, in case of accident at work occurred abroad (i.e. injury or death resulting from natural or climate events), under which violations of the Legislative Decree 81/2008 constitute the negligence;
- Contributory negligence for intentional offence, if the worker is victim of wilful injury or wilful murder (e.g. terrorist attacks or kidnapping);
- Administrative offence resulting from the mentioned crimes (ex Legislative Decree 231/2001).
The criminal liability is necessarily linked to the personal property liability for the so-called “differential damage” (which is not covered by the Italian INAIL guarantee) suffered by the worker or his heirs for the persons who undergo criminal proceedings.
Identified requirements by law on criminal liability
Article 6 of the Criminal Code provides that:
«The crime is considered to have been committed in the territory of the State when the action or omission, which constitutes it, has occurred there in whole or in part, in other words occurred there the event which is the consequence of the action or omission»
Therefore, the crime of manslaughter or personal injury is considered committed in Italy not only when the worker is injured in the Italian state, but also in the event that the event occurs abroad but the crime derives – by causal connection – from an action or omission occurred in Italian territory (i.e. in the case of incomplete risk assessment and / or lack of professional development and / or information).
According to settled law (as last Cass. pen., Sez. IV, Sent. 27 settembre 2021 – ud. 20 maggio 2021, n. 35510) there is Italian criminal jurisdiction for an accident occurring abroad for the sole reason that the professional development and information of the worker had to be done at the Italian Company’s premises.
The owner of the Italian Company must verify the Company where the worker must perform the professional service and the safety conditions of the construction site, as well as of the foreign state where the worker goes. The foreign posting of the construction is a irrelevant factor, unsuitable in itself to exclude the operation of the obligations on the employer.
What must the employer to do to minimise the risks?
The Italian employer must proceed:
- Risk assessment in accordance with the Decree Law 81/2008, obligation from which follows that of considering and adopting all appropriate measures to protect the worker «sent» out of Italy;
- Sorting and assessment of so-called «aggravated generic risks», i.e. risks concerning the geographical and climatic characteristics of the foreign location, health conditions, cultural, political and social characteristics of the community, the risk of war or secession and the adequacy of emergency and first aid support facilities;
- To adopt the consequent protections and precautions, inform and train the worker;
- To document the risk assessment activity of training and informing the worker.
In detail, the employer will have to acquire, through authoritative and objective international sources, information on the destination areas with particular regard to health and safety conditions, have an overview of the various characteristics of his Country (or region, or city, etc.) of destination (or crossed during the trip), such as, by example:
- customs and traditions;
- critical issues relating to urban security;
- possible cultural misunderstanding;
- situation of communication routes;
- traffic regulations;
- driving permits;
- information on the weather situation.
What must the employer do to limit the Firm’s criminal liability under Legislative Decree 231?
In the event of manslaughter or culpable injury to prevent the criminal liability of the company’s top management, the company must:
- have adopted MOG 231 before the event;
- the MOG 231 must contain a specific assessment of the risks connected to travelling abroad (i.e., have a Special Section of the MOG 231 dedicated to such risks)
- the MOG 231 must provide a procedure to comply with the prescriptions described in the preceding paragraph.
What can Studio Arletti & Partners do: the Risk Management Model for traveling abroad
Studio Arletti, together with its Partners, experts in workplace safety, in criminal law and procedure and in the Italian Legislative Decree 231/2001, has created a Risk Management Model for assignments abroad. Our tool, on the basis of a computerised structure, makes it possible to correctly assess the Risk-level relating to the trip. Such assessment is made not on the basis of generic information referring to the nation on the whole, but with regard to the precise areas in which the employee will work. This approach allows for much more accurate results than a generic Country risk assessment.
The assessment also takes into account the employee’s itinerary, as well as the accommodations and workplaces within the country.
So as to rationalise and objectively classify the dangerousness of the scenario in which the employee will operate, the internal areas of the country are subdivided according to a graded scale of at least 4 levels. This method helps to determine an objective process, based on the information gathered on the area, and helps avoiding subjective evaluations that could lead to erroneous decisions or decisions that differ from the corporate model adopted.
What are the functions of the A&P model?
- The model makes it possible to monitor the level of risk throughout the duration of the work trip and until the worker’s return home.
- Furthermore, it helps to keep track of and archive all the risk assessment steps that have been carried out.
- Therefore, the model constitutes a true organisational process for managing the risks arising from travelling abroad, and it mitigates the risks connected to the trip as much as possible.
From the point of view of the criminal liability of the entity pursuant to Legislative Decree 231/2001, this Model may complete a MOG 231 – should the company already have one -, or it may constitute the first brick to build a whole MOG 231 on, if it is the company’s intention to do so.