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Smart worker injury and employer’s criminal liability

Monday 20 September 2021

Andrea Puccio
Founding Partner, Puccio - Penalisti Associati, Milan, Italy
puccio@pucciopenalisti.it

A few weeks ago, for the first time ever, Instituto nazionale Assicurazione Infortuni sul Lavoro, ie, the National Institute for Insurance against Accidents at Work (INAIL) granted compensation for damages on behalf of an Italian smart worker, who was injured while she was working from her own home.

In the specific case, the employee fell disastrously down the stairs of her own home during a phone call with her colleague. The accident was very severe and caused her several fractures.

Once she received the necessary medical treatments, the employee reported the accident to INAIL according to the Italian Labour procedure. However, INAIL rejected the request of compensation for damages due to the lack of link between the accident occurred and the working activities carried out.

The smart worker filed an appeal against such a denial and INAIL overturned its decision, recognising that the accident was occurred within the working activities. Therefore, it granted the compensation for damages on behalf of the employee for a total amount of €20,000, plus ten years’ medical examination and treatments for free.

As a result of this case, and INAIL’s initial denial to recognise the claim for compensation for damages, this identified the vulnerability of the protection provided by the Law on behalf of smart workers, raising questions about insurance coverage limits in the daily practice and the related obligations of the employers.

In this respect, it is necessary to highlight that Article 23, paragraph 2 of Law no 81 of 22 May 2017, concerning smart working, provides an extension of the smart workers’ protection against accidents occurred/diseases caused within this new model of work.

In fact, carrying out one’s professional activities in smart working cannot remove the objective requirements (risky work) and the subjective ones (features of the insured people) requested respectively by Articles 1 and 4, paragraph 1) of the Presidential Decree no 1124 of 30 June 1965, to apply the insurance coverage on behalf of the employees.

In addition to the above, the same INAIL issued a guideline (no. 48 of 2 November 2017), in order to clarify what is the precise meaning of the wording contained in the provisions of law related to this matter.

The guideline specifies that, even from an insurance coverage point of view, the work performance in smart working does not constitute a differentiation element with respect to the normal workers’ management. The sole exception is represented by the so-called ‘elective risk’, that occurs when the smart worker voluntarily exposes himself or herself to some risks, breaching the precautionary measures indicated by the employer.

Furthermore, INAIL made it clear that all the complementary and subsidiary working activities related to the main one must also be included in the activities covered by the insurance coverage, even if they are performed outside of the company premises.

In the light of this, if an accident occurred (even if it was outside of the company premises), the employer could be held criminally liable, pursuant to Articles 589 and 590 of the Italian Criminal Code – related to the offences of manslaughter and injuries – if the event was caused by an underestimation of the risks associated with the work activities.

However, beyond the abstract extension of the provisions of law, the guarantees mentioned above (as initially happened in the case in question) could be reduced, given the employer’s objective impossibility to constantly monitor the correctness of the smart workers extra-company activities. In fact, in such contexts, both INAIL and the employer could possibly raise the objection to be in presence of the ‘elective risk’ mentioned above. Consequently, there could be a possible limitation of the concrete/effective protection of the employee in those cases.

The application of this argument can, however, be limited by the case law. On the contrary, it would undermine the purpose of Law no 81/2017, which introduces a general and wide obligation of the employer to protect, from the point of view of insurance and safety, the employee who performs his or her activities in smart working.

In conclusion, applying the principles explained above to the case in hand, if it had been proved that the accident occurred in the presence of an ‘elective risk’, the employer would have been considered as criminal responsible only if it had not carried out an adequate risks assessment in relation to the ‘extra moenia’ work activities (activities performed out of the company premises) and had not properly informed and trained the employee regarding the precautionary measures to prevent the above-mentioned risks.