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THE OCCUPATIONAL RISK PREVENTION ACT AND THE BENEFIT SURCHARGE.
In order to uphold the constitutional principle set out in Article 40.2 of the Spanish Constitution, which concerns the protection of workers' health and the need to prevent risks arising from their work, the legislature enacted the current Occupational Risk Prevention Act (hereinafter LPRL).
The purpose of this Act is "to establish the core framework of guarantees and responsibilities required to ensure an adequate level of protection of workers' health against risks arising from working conditions" (Article 2 LPRL).
Accordingly, the employee is guaranteed the right to effective protection in matters of occupational health and safety. This right is underpinned by a corresponding duty on the part of the employer, who must at all times safeguard the wellbeing of their employees.
EMPLOYERS' CORE OBLIGATIONS AND LIABILITY FRAMEWORK IN RELATION TO THE BENEFIT SURCHARGE
Specifically, the employer has two unavoidable obligations towards their workers, which arise from the contractual relationship between them:
1. To ensure the safety of the workers in their charge.
2. To provide them with a healthy working environment.
To ensure compliance, the LPRL establishes in its CHAPTER VII the liability framework to which employers may be subject:
Article 42.1: "Failure by employers to comply with their obligations in the field of occupational risk prevention shall give rise to administrative liability, and, where applicable, to criminal liability and civil liability for any loss and damage that may result from such failure."
Alongside the liabilities set out in that article, there is a further category of liability specifically linked to Social Security benefits. This is the surcharge on benefits for failure to implement health and safety measures, regulated under paragraph 3 of the same article:
"The administrative liabilities arising from penalty proceedings shall be compatible with compensation for loss and damage caused, and with surcharges on Social Security System financial benefits that may be imposed by the competent authority in accordance with the provisions of the regulations governing that system."
THE SURCHARGE ON SOCIAL SECURITY ECONOMIC BENEFITS
What is the benefit surcharge and what is its legal basis?
When a work-related accident occurs as a direct consequence of a failure to implement health and safety measures, the legislator imposes on the employer in breach what is known as the surcharge on economic benefits.
This is an independent penalty, compatible with all other forms of liability set out in Article 42.1 of the Occupational Risk Prevention Act (LPRL), administrative, civil, and even criminal, and consists of an increase in the amount of the economic benefits arising from the workplace accident.
As a basic prerequisite for the surcharge to be imposed, the accident must be the direct and proven result of the employer's failure to implement the legally required safety measures.
2. Legislation governing the benefit surcharge.
Article 1 of the LPRL provides that:
"The regulations on occupational risk prevention comprise this Act, its implementing or supplementary provisions, and any other legal or conventional rules containing requirements relating to the adoption of preventive measures in the workplace or capable of producing effects in that sphere."
As this provision makes clear, there is an extensive and varied body of legislation on workplace risk prevention, including specific rules on the surcharge on economic benefits.
Article 123 of the General Social Security Act and Article 27 of the General Regulation on procedures for the imposition of penalties for infringements of the social order broadly complement the regulatory framework established by the LPRL in this area.
3. What is the legal nature of the Social Security benefit surcharge?
According to the doctrine of the Constitutional Court, the surcharge on economic benefits provided for in Article 123 of the General Social Security Act "constitutes an extraordinary liability incumbent upon the employer that is purely punitive in nature."
It is therefore an administrative penalty, a sanction imposed by the authorities on any party that breaches the rules on workplace risk prevention.
Rather than accruing to the sanctioning authority, however, the benefit flows directly to the injured employee.
4. The employer's liability for the surcharge and contributory fault.
A) Where an employer fails to implement measures designed to prevent risks arising from the company's activities, they will be liable for payment of the corresponding surcharge.
Since this liability cannot be covered by insurance, the full amount must be borne by the employer. In cases involving contracts and subcontracts between companies, liability for the surcharge may be shared jointly and severally between the principal contractor and the company that has been sub/contracted by them.
B) It is also possible that the accident was caused by the negligent conduct of the employee, while the employer simultaneously failed to implement the required safety measures.
In such cases, the percentage of the surcharge will be adjusted according to the relative weight of each party's conduct in bringing about the accident.
The company may be exempt from the surcharge where the employee acted recklessly, failed to comply with safety rules or repeated warnings from the company, or in cases where the accident arose from unforeseeable circumstances, provided it can be demonstrated that the employer exercised due diligence.
5. Grounds for imposing the surcharge and the applicable amount.
The General Social Security Act, in Article 123, provides as follows:"
All financial benefits arising from a work-related accident or occupational illness shall be increased, according to the seriousness of the breach, by between 30 and 50 per cent, where the injury occurs due to machinery, equipment, or at installations, workplaces or work sites that lack the required safety devices, have them disabled or in poor condition, or where the general or specific health and safety measures have not been observed, or where basic hygiene standards or requirements for matching individuals to their specific work have not been met, taking into account the characteristics of the work and the age, sex and other personal circumstances of the employee."
Accordingly, whenever the employer falls within any of the grounds set out in the above provision, and depending on the seriousness of the breach, the relevant authority will impose an increase of between 30 and 50 per cent on the pension awarded to the injured employee.
6. Calculating the benefit surcharge
If you would like us to calculate your benefit surcharge, please complete the form below and we will provide you with a calculation at a very competitive price.
OVERVIEW OF THE PROCEDURE FOR IMPOSING THE SURCHARGE ON SOCIAL SECURITY BENEFITS.
AWARD BY Social Security OF A BENEFIT TO THE INJURED employee
| INITIATION OF THE SURCHARGE APPLICATION PROCEDURE BEFORE Social Security: ADMINISTRATIVE ROUTE |
SURCHARGE APPLICATION SUBMISSION
REPRESENTATIONS AGAINST THE SURCHARGE APPLICATION
Social Security DECISION
APPEALS AGAINST THE Social Security DECISION
| INITIATION OF THE BENEFIT SURCHARGE APPLICATION PROCEDURE BEFORE THE EMPLOYMENT COURTS: JUDICIAL ROUTE |
claim AGAINST THE Social Security DECISION
ruling OF THE employment tribunal AT FIRST INSTANCE
AVAILABLE APPEALS (ORDINARY APPEAL, High Court of Justice / cassation appeal, Supreme Court / CONSTITUTIONAL APPEAL, Constitutional Court)
