The manager’s position of guarantee and that of the employee: preventative powers and reporting powers

On 15 March 2024, our Danilo Cilia had the pleasure of participating as a speaker in the conference ‘Safety and Accidents at Work’, organised by the Fondazione Forense dell’Ordine degli Avvocati di Milano.

❓In particular, the question was asked: can the non-peer employee be liable for the culpable event crime as the recipient of a position of guarantee with respect to the good (life, individual safety, etc.) protected by the culpable event?

🏛 Practice tells us that:

👉 a position of guarantee may also be recognised in the case of an employee not endowed with apical powers;

👉 the contents consist in reporting obligations, consisting in urging the apical superiors to exercise the preventive powers with which they are directly endowed;

👉 in short: the failure to activate the power/duty to report may constitute the basis of the criminal liability of the non-managerial employee, provided that it can be affirmed, in counterfactual terms and with a high degree of logical probability, that the proper exercise of the duty to report would have (activated the preventative power of the senior superior, and therefore) prevented the event.

Special thanks to Avv. Giovanna Fantini, Enrico Giarda for their hospitality and exquisite welcome, and to the excellent Alessandra Rovescalli, Angela Zucchetti, Emanuela Gallo, Fabrizio Salmi and Antonella Carbone for their valuable contributions to the debate.

#safety#work #hse

Translated with DeepL.com (free version)