The definition of worker for safety purposes according to the Court of Cassation

The Court of Cassation,  IV criminal section, in its ruling no. 23809 of 21 June 2022, clarified the definition of “worker” for workplace health and safety purposes.

Facts of the case

The case arose from the accident that occurred to an “illegal” worker who fell from the provided ladder while he was trying to remove the pergola in front of the restaurant managed by his “employer” and upon the latter’s request. 

The defendant employer was convicted in both instances of culpable personal injury (Art. 590 of the Italian criminal code) against the injured worker.

The principal defended himself by pointing out that the Court of Labour of Siena ascertained that there was no subordinate employment relationship between him and the injured worker and that this would have “undermined the accusatory argument.“

The defendant appealed to the Court of Cassation against the Court of Appeal of Florence ruling – which confirmed the Court of Siena first instance ruling.

The Supreme Court of Cassation’s ruling

The Court of Cassation found the appeal inadmissible. What was considered relevant was not the worker’s qualification but the fact that the “illegal”, worker carried out tasks (i) at the “employer’s” request, (ii) in a place specified by the employer and (iii) with employer-provided means.

According to the Supreme Court, based on the finding that the pergola subject to removal was part of the restaurant run by the defendant and that the task was entrusted by the defendant, the “employer” assumed the management of the risks associated to working at a height. In addition, the ladder used by the worker “lacked the most basic safety measures, since it was used simply by leaning against the wall“. 

For these reasons, according to the Court of Cassation and for health and safety protection obligations purposes, the plaintiff assumed the role of employer.

As stated by the Court of Appeal, Art. 2, paragraph 1, letter a) of Legislative Decree no. 81/2008, “worker is a person who, regardless of the type of contract, performs work within the organisation of a public or private employer with or without remuneration.” Considering the above, the rules on workplace health and safety apply even without a compliant and formal employment contract.

For these reasons, the Court of Cassation declared the appeal inadmissible and ordered the appellant to pay the proceedings costs and € 30,000 in favour of the Cassa delle ammende (Fine Fund) and the reimbursement of the costs of the dismissed appeal in favour of the civil plaintiff of another € 30,000.

Other related insights:

• Accident of the undeclared worker: liability of the employer and the company
• European Commission: the fight against irregular work