By Enzo Bacciardi and Michele Sacchi –  Employment Law Department

 

A recent ruling of the Italian Supreme Court (Criminal Section IV, 20 November 2025, No. 39520) delivers a very clear message to company directors and those managing construction sites: criminal liability for a fatal workplace accident cannot be avoided through de facto delegations, subcontracting arrangements, or purely “nominal” roles.

The case concerned the death of a worker who fell from a height of more than 12 meters while working on a roof. Part of the works had been subcontracted, and several parties were operating on site. The managing director of the employer company argued that her role was merely formal and that the actual management had been entrusted to others—a defence frequently raised in practice. It did not succeed.

The key principle: the office creates a duty of care

The Court reaffirmed a fundamental concept: appointment as managing director (and, consequently, as employer) automatically creates a position of guarantee under Article 40(2) of the Italian Criminal Code. This applies regardless of who, in practice, manages the construction site.

The presence of a “de facto manager” does not replace the employer; it adds to them. In other words, it increases the number of liable parties rather than excluding those already in place.

Subcontracting: organisationally useful, criminally irrelevant

Another crucial point for companies concerns subcontracting. Subcontracting does not release the main contractor from its health and safety obligations. Even where subcontractors have their own preventive duties, the contractor remains responsible for:

  • verifying in concrete terms that safety measures are in place;

  • checking that such measures are adequate in relation to the risks;

  • intervening where measures are missing or inadequate.

Relying “on paper” on the subcontractor’s activities is not sufficient.

No delegation, no exemption

The employer’s liability may be excluded only where there is a valid and effective delegation of functions, meaning one that fully complies with the strict requirements set out in Article 16 of Legislative Decree No. 81/2008 (written form, specificity, acceptance by the delegate, and the attribution of adequate powers and resources). In the absence of such a properly structured delegation—as in the case at issue—liability remains full.

Practical guidance for directors and HR

This decision highlights several operational rules:

  1. Subcontracting is not a shield; active supervision is required.

  2. “De facto” delegations are ineffective and offer no protection unless they comply with the law.

  3. Safety must be verified on site, not only in documentation.

  4. Accepting a corporate office always entails criminal liability, not merely formal responsibility.

And, in the event of a fatal accident, the consequences are criminal in nature.