What Duties For Italian Companies With Employees Seconded In Armed Conflict Areas

Introduction

While seconding employees abroad is a common practice in a globalized economy, a critical question arises when an armed conflict breaks out in the host country: who remains responsible for the employees’ safety?

Generally speaking, in case of secondment, most health and safety obligations are attributed to the host entity. However, this general allocation of responsibilities may not be sufficient when the risk extends beyond the workplace to the entire geopolitical context. In such scenarios, the sending employer may not be entirely relieved of its H&S duties, also considering that Article 2087 of the Italian Civil Code generally requires employers to adopt all necessary measures to safeguard the physical and moral integrity of their employees.

Most relevant H&S provisions in case of emergency 

• Applicable health and safety provisions 

  According to Article 43 of the Italian Legislative Decree no. 81/2008 (the H&S Decree), the employer must “plan interventions, take appropriate measures, and give instructions so that employees, in the event of serious and immediate danger, may cease their activity or move to a place of safety by immediately leaving the workplace”.

  Most likely, this provision was not conceived having armed conflict scenarios in mind. Rather, it appears designed to address emergencies occurring within the workplace (e.g. fires, accidents, evacuation of premises). Nor does it seem tailored to a (potentially transnational) secondment context, in which the main H&S duties in case of emergency would likely rest primarily with the host entity, which would have direct control over the environment where the work is performed. 

  That said, Article 43 might be relevant also for the sending employer. Indeed, regardless of the host entity’s obligations pursuant to the applicable laws, it would be unreasonable to assert that the sending employer could remain completely passive.

• Article 2087 of the Italian Civil Code

  A responsibility of the sending employer may be supported also in light of Article 2087 of the Italian Civil Code, which provides for a general duty of care of the employer over its employees. 

  On this basis, it may be argued that, in case of emergencies, also the sending employer should take action, at least through coordination with the host entity and activation of institutional channels, and potentially also through revocation of the secondment and repatriation of the employees concerned.

Conclusions

Italian law does not provide explicit guidance on the responsibilities of the sending employer in the event of armed conflict in the host country. Existing provisions were likely designed for different kinds of risks and adapting them to geopolitical emergencies requires interpretation.

However, it would be fair to contend that secondment does not act as a shield for the sending employer. Indeed, based on the relevant provisions (in particular, Article 2087 of the Italian Civil Code, read together with Article 43 of the H&S Decree) it seems likely that a duty to take action lies also with the sending employer. 

In light of the above, a prudent approach appears not only legally advisable but also aligned with organizational and ethical responsibilities.