An occupational accident, when accompanied by a lack of safety measures, can lead to the company having to assume a series of responsibilities. The Law on the Prevention of Occupational Risks establishes the obligation of companies to ensure the health and safety of their workers, providing them with effective protection against occupational risks. Failure to comply with this obligation can give rise to various types of liability. The types of responsibilities that a company may incur in terms of workplace accidents due to lack of safety measures are the following:
a) Administrative liability for occupational accident
Corporate responsibility at this point is linked to non-compliance with legal and regulatory obligations, so responsibility at the administrative level arises from the actions or omissions of the company in breaching the rules on the prevention of occupational risks. Administrative responsibility is imposed by the competent Labour Authority in application of a series of sanctions provided for in Royal Legislative Decree 5/2000, which approves the Consolidated Text of the Law of Infractions in the Social Order, which correspond to the infractions that the same legal text provides according to their seriousness (minor, serious or very serious).
Infractions in the area of prevention of occupational risks will be sanctioned with a fine from 45 to 2.450 euros, those classified as minor; with a fine, from 2.451 to 49.180 euros, those classified as serious; and with a fine from 49.181 to 983.736 euros, as very serious.
b) Surcharge on benefits
The economic benefits for medical leave of the worker that has been caused by an accident at work will be increased, depending on the severity of the offense, between 30% and 50%, when the injury is produced by work equipment or in facilities, centres or workplaces that lack the regulatory means of protection, have them in unusable or in poor condition, or when the general or particular safety and health measures at work have not been observed. This means that the company will have to pay the worker an amount that represents 30% or 50% more than the economic benefit of accidents to which the worker is entitled, affecting all Social Security benefits, either during disability temporary or if the declaration of a permanent disability is determined. The responsibility for the payment of the surcharge will fall directly on the offending company and is not insurable. Likewise, the surcharge is inalienable for the worker.
c) Civil liability for occupational accident
An occupational accident, when accompanied by a lack of safety measures, can also result in the company having to assume civil liability for a work accident, paying the worker compensation for damages. To avoid such liability, the company must prove that all the necessary measures have been taken to prevent or avoid the risk and, where appropriate, the concurrence of any factor that excludes or lessens liability. Civil liability can be insured with an employer’s civil liability policy, unlike the surcharge on benefits, which is not insurable. Regarding the amount of compensation, an analogous application of the scale of traffic accidents (Law 35/2015) is made, although it is not binding.
d) Criminal liability for occupational accident
Article 316 of the Penal Code defines the crime against safety and health at work, and attributes criminal responsibility to those who “with infractions of the rules of prevention of occupational risks and being legally bound, do not provide the necessary means for workers to carry out their activity with adequate health and safety measures, in such a way as to seriously endanger their life, health or physical integrity ”. Likewise, the labour regulation itself already refers to the possible criminal responsibilities of the company, among others, in article 42 of the Law on Prevention of Occupational Risks, which establishes that “non-compliance by employers of their obligations regarding prevention of occupational risks will give rise to administrative liabilities, as well as, where appropriate, criminal and civil liabilities for damages that may arise from such non-compliance ”.
The crimes of criminal responsibility can be of risk or result:
• High-risk crimes that do not comply with the regulations for the prevention of occupational risks and pose a serious risk to the lives of workers will be punished with between 6 months and 3 years in prison, and may be replaced by fines or work for the community when the penalty does not exceed 12 months or in exceptional cases does not exceed 24 months.
• Result crimes that are caused by gross negligence and may cause the death of any of the workers will be punished with prison terms of between 1 and 4 years in prison, and a disqualification will also be imposed on the employer of between 3 and 6 years.
