Internship: the employer has the same employee duties on health and safety (Andre Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, April 2022)

29 April 2022

In its ruling no. 7093 of 1 March 2022, The Court of Cassation outlined employer responsibilities on occupational health and safety obligations for interns.

The case originated from an accident that occurred to a student intern on a farm. When cleaning a large tank, the intern climbed a ladder holding a rubber hose connected to the water tap. Together with her tutor, the tank had been opened and the heavy metal lid balanced on the edge. During the cleaning, the lid fell on the intern, hitting her right hand and causing a deep cut wound with a tendon injury.

The judicial process that followed the event ruled that the employer was criminally responsible for the incident, having caused the intern personal injuries which would take 105 days to heal. At the various levels of judgement, it was observed how, under Art. 2, letter a), of Legislative Decree no. 81/2008 ( “Consolidated law on safety at work”), the intern must be included in the broader “worker” category. This is because, for safety at work purposes, anyone who performs “work within a public or private employer organisation, with or without remuneration, including for training purposes in a trade, craft or profession, excluding domestic and family service workers” is considered a worker regardless of the type of contract.

Based on the above provision, the employer was charged with violation of the rules on safety at work because “the tank washing was carried out without any prior risk assessment, training or providing the intern with the necessary protective equipment (Articles 17, 37 and 71 Legislative Decree no. 81/2008).”

The company appealed against the above ruling in cassation, providing several grounds for complaint.

The company stated that it did not have to comply with the provisions of the Consolidated Law on safety at work, since the fulfilment of the intern’s safety obligations was the sole promoter’s responsibility unless a special agreement made this responsibility fall on the host company. The employer observed that the agreement expressly provided that the intern’s insurance coverage against accidents at work was part of the obligations of the promoter, i.e., the university where the intern was enrolled at the time.

The employer observed that it was equally evident that the spaces and facilities made available to interns on the company premises were compliant with the agreement stipulated with the university. No criminal liability could have rested on the employer considering that an occupational safety officer had been appointed to assess the risks within the company.

Lastly, the employer considered that it was clear that the accident suffered by the intern was due to her sudden and unforeseeable behaviour, unrelated to the task entrusted to her. During cleaning carried out by the intern, the lid, probably due to the water pressure, became unbalanced towards the inside of the tank. The intern attempted to stop the lid with her right hand, while continuing to hold the irrigation hose with her left. According to the employer, by acting in this way the intern was fully aware that she was engaging in conduct that was dangerous to her safety, which was attributable to abnormal behaviour that could exclude any company liability. The employer argued, “even with adequate safety training, the accident would have occurred anyway, as the injured person’s behaviour went beyond the most elementary rules of prudence.”

Given the reasons provided by the employer in its appeal, the Court of Cassation held that the grounds of complaint were manifestly unfounded, rejecting the employer’s appeal.

The application of Legislative Decree no. 81/2008 was correct since the figure of an intern is similar to an ordinary employee for all intents and purposes. Consequently, when a company hosts those carrying out internships, the employer must follow the obligations provided for by the consolidated law to ensure their health and safety.

Additionally, the insurance obligation incumbent on the promoter was irrelevant, since, as can be seen from INAIL circular no. 16/2014, it concerns the “insurance obligation of interns and the relevant premium”, without any relevance to safety in the workplace. The Supreme Court found that the existence of any exoneration from employer liability for interns cannot be validly argued in the regulations and the agreement referred to in the appeal.

The Court of Cassation noted how the second instance ruling ascertained the omission of “any information and training on the work to be carried out” by the intern, “who specified that she did not receive any instruction on the working methods.” The employer stated that they “did not know how the tank washing was to be carried out and that they did not receive any training on how to carry out tutoring.” It was evident that the employer did not equip the intern “with personal protective equipment (cut-resistant gloves) necessary to carry out the operation, given the type of lid and the fact that it was not held in any way when it was being moved.”

The Court noted that the employer has a duty to carry out “a prior assessment of the risk to which the intern was exposed, whose position is equivalent to a worker for the above reasons, and the adoption of the necessary safety measures.”

The circumstance, pointed out in the appeal, according to which the company owner availed herself of the services of a professional to resolve

any safety issues had no relevance. On this point, under Art. 17 Legislative Decree no. 81/2008, the risk assessment is a task entrusted to the employer and cannot be delegated.

The intern’s “abnormal” behaviour was deemed irrelevant. “When the event can be linked to the violation of multiple provisions on prevention and safety at work, the worker’s behaviour cannot be considered unusual or excessive even if they have ignored elementary safety rules. It remains the employer’s responsibility to guarantee their health and safety.”

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