This article is written from the perspective of the responsibilities and potential management of an accident from the company's point of view.
Written by Josep Conesa
Employment and insolvency lawyer
If you are an employee, we have provided this link for you, but we believe this article is also relevant to you, because we know that employment law is a two-sided coin — and the better we understand both sides, the more effectively we can protect the rights and obligations of both companies and workers.
FIRST STEPS FOLLOWING A work-related accident:
With that in mind, it is worth noting that when a work-related accident occurs at the company, a number of important steps need to be taken.
The first priority is to attend to the injured person. They are the primary victim of what has happened, and their health comes above everything else.
The second step we strongly recommend is for the company to gather any witnesses and ask each of them to write down, in their own words, exactly what they saw. The person responsible at the company should keep these initial statements safe, because — as we always say at our firm — we place greater trust in evidence than in justice alone. The reality is that accounts of an accident tend to shift considerably over time, and what actually happened can become distorted or obscured in ways that are difficult to anticipate.
The third step we recommend is to contact a lawyer specialising in workplace accidents as early as possible. Getting expert guidance from the outset allows the matter to be handled properly from the start, and puts you in a much stronger position when it comes to negotiating a resolution or mounting a defence. In many cases, the details make all the difference.
It is worth noting that in cases of work-related accidents or occupational illnesses, the following 4 avenues of claim are available:
- The criminal route, seeking criminal consequences arising from an offence.
- The civil route, claiming damages (heard before the employment jurisdiction).
- The employment route, claiming a surcharge on benefits.
- The administrative route, seeking an administrative sanction (heard before the employment jurisdiction).
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The Criminal Route:
Title XV of the Spanish Criminal Code governs offences against workers' rights.
Article 316 of the Spanish Criminal Code provides that those who, in breach of occupational health and safety regulations and being legally obliged to comply, fail to provide the necessary means for workers to carry out their activities with adequate health and safety measures — thereby seriously endangering their life, health or physical integrity — shall be liable to custodial sentences of between six months and three years, together with a fine of between six and twelve months.
The employee may report the facts through the criminal courts, which will trigger an initial investigation phase before the Examining Magistrate's Court.
It is possible that, following the investigation phase, the judge may find sufficient evidence of a criminal offence and refer the matter to the Criminal Court for trial and ruling.
THE CIVIL ROUTE:
If the criminal proceedings establish that an offence was committed by the company, it will ordinarily be the Criminal Court judge who assesses the damages, as the employee will have requested this.
However, the criminal proceedings may conclude without any finding of fault. In such cases, the criminal courts will not assess the damages. For this reason, the employee may simultaneously pursue a claim for damages through the employment route.
There is no longer any doubt that the employment tribunal has jurisdiction over these cases — even where the claim is for civil liability in damages — because it is a claim arising from an employment contract.
The insurer and its coverage:
When an accident occurs — or at the latest when the first claim from the employee is received — the accident must be reported to the insurer. Although liability for the damages rests with the company, the insurer will be responsible for paying those damages up to the limits of the policy.
It is important to note that liability insurance policies contain different types of coverage. In the event of a workplace accident, you should check what is covered under "Employer's Liability", the limits of which will be set out in the specific clauses or particular conditions of the policy.
In the case of an occupational illness, one clause that must be carefully reviewed is that insurers commonly exclude occupational illness cover in the general terms and conditions of the policy. This is worth bearing in mind.
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Collective bargaining agreement policy:
The collective bargaining agreement may require the company to maintain insurance cover for certain contingencies in the event of an accident or occupational illness within the company. This is common in sectors with a high rate of workplace incidents. You can easily look up your collective bargaining agreement using the search tool:
Even if the accident or illness occurred without any breach of safety measures, or even where the company is not at fault, the insurer will be required to pay those amounts solely on the basis that the employee has suffered an illness or accident arising from an occupational contingency (i.e. work-related).
Even where the collective bargaining agreement requires cover for accidents and occupational illnesses, in the case of an occupational illness you should also check whether the policy excludes it, covering only work-related accident. If that is the case, the insurer may not cover the occupational illness, making the company directly liable for payment. Should the employee subsequently claim damages, any amount already received under that collective agreement policy must be deducted from the total claimed.
Interpreting policy clauses is not always straightforward. Ambiguities and obscure provisions are common, and it is advisable to have them reviewed by a specialist. One example is the legal defence clause, in relation to which it is important to be aware of the recent ruling of the Supreme Court, which establishes as void any limits imposed when the insured party engages a private lawyer for their defence through the free designation of a lawyer and court representative.
If you would like us to review your policy, please briefly describe your situation and send us the policy:
Assessment of damages:
- Assessment of damages:
Since the ruling of the Supreme Court 414/2007 and 14-7-09, Rec 3576/08, the Employment Tribunal must adhere to the system for assessing damages caused to individuals in road traffic accidents. The Judge may depart from the scale of compensation but must provide reasoned justification in their ruling.
We provide here the full text of the road traffic accident compensation scale under Law 35/2015, of 22 September, reforming the system for the assessment of damages caused to individuals in road traffic accidents.
Download Road Traffic Accidents Act
ANNEXES TO LAW 35/2015
TABLE 1.A – DEATH: BASIC PERSONAL DAMAGES
TABLE 1.B – DEATH: PARTICULAR PERSONAL DAMAGES
TABLE 1.C – DEATH: PATRIMONIAL DAMAGES
TABLE 1.C.1 – LOSS OF EARNINGS: SPOUSE
TABLE 2.A.2 ECONOMIC SCALE POINTS
TABLES 2B 2C PERSONAL HARM MORAL DAMAGES – PATRIMONIAL LOSS DIRECT DAMAGES.PDF
TABLE 3 COMPENSATION FOR TEMPORARY INJURIES
If you would like us to provide an approximate assessment of the damages arising from the injuries suffered by the employee, please contact us so we can discuss this with you directly:
- The assessment of moral damages.
- Deductions for the capitalisation of benefits or collective agreement insurance policies.
Limitation periods:
The limitation period for claiming damages is one year, as established under Article 59 of the Workers' Statute.
Determining the start date from which damages may be claimed is more complex. Case law has established that the one-year limitation period begins to run from the point at which permanent sequelae are confirmed. In cases of disability, the courts have interpreted this to mean that the one-year period may equally run from the date on which the pension is granted.
Joint liability and subcontracting:
In sectors such as construction, or in situations involving a change of employer, subcontracted companies or companies that take over from a previous company may be jointly and severally liable for any employment or Social Security obligations that arise.
The employment law route:
Under the employment law route, it will likely be necessary to defend two separate sets of proceedings:
PROCEEDINGS FOR INVALIDITY OR INCAPACITY ARISING FROM A work-related accident OR occupational illness:
The 4 most common types of incapacity are:
- Partial permanent incapacity for the employee's usual occupation:
This applies where, without reaching the level of total incapacity, the employee suffers a reduction of at least 33% in their normal output for that occupation, without being prevented from carrying out its core tasks.
- Total permanent disability (IPT) for the usual occupation:
This prevents the employee from performing all or the core tasks of their usual occupation, provided they are able to take up a different one.
- Absolute permanent disability (IPA) for all work:
This completely prevents the employee from engaging in any profession or trade whatsoever.
- severe disability:
This applies to an employee who has a permanent disability and, as a result of anatomical or functional loss, requires the assistance of another person to carry out the most basic activities of daily life, such as dressing, moving around, eating, or similar tasks.
the benefit surcharge procedure:
The benefit surcharge is governed by Article 164 of the General Social Security Act.
It functions as both a penalty and a form of compensation imposed on the employer following a work-related accident or occupational illness caused by a failure to implement adequate health and safety or risk prevention measures. This penalty or compensation entitles the employee to an increase in their benefits of between 30% and 50%, which the employer must pay in a single lump sum — without the possibility of covering it through a civil liability insurance policy.
This is arguably the most controversial legal mechanism in employment law. We have been dealing with benefit surcharge cases for years and have encountered every kind of situation — the most unjust of which, without doubt, are those arising from occupational illnesses.
We explain the benefit surcharge mechanism and its potential weaknesses for defence purposes in more detail at https://conesalegal.com/calculo-del-recargo-de-prestaciones/
In the following link we discuss a real-life case involving a benefit surcharge imposed on a bakery company, highlighting some lines of defence we are exploring in light of the unsettled case law on the matter.
If you would like to find out the amount of a benefit surcharge, use our benefit surcharge calculation service. Despite the complexity of the calculation, we have developed an actuarial formula to provide an approximate figure. Request it via the following link https://www.conesalegal.com/info/calculo-del-recargo-de-prestaciones:
LIMITATION PERIODS FOR THE BENEFIT SURCHARGE:
As this is a surcharge on Social Security benefits, the limitation period for the right to have those benefits recognised is five years, running from the day after the event giving rise to the benefit in question, in accordance with Social Security legislation (Article 53.1 TRLGSS (Article 43.1 TRLGSS/94).
However, case law (Supreme Court judgment of 18 December 2015, Appeal No. 2720/2014) has established that the dies a quo (start date of the limitation period) coincides with the date on which the first judicial or administrative decision recognising the existence of an occupational contingency as the cause of a benefit becomes final. The courts have further clarified that, once the right has become time-barred, it does not revive upon the subsequent recognition of a new degree of permanent disability.
THE ADMINISTRATIVE ROUTE:
The administrative route is opened as a result of inspection proceedings that conclude with the imposition of a penalty under the Law on Infringements and Sanctions in the Social Order.
- Administrative procedure:
The administration will notify a proposed penalty, against which submissions must be made. It is common for the administration to then issue a decision confirming the penalty notwithstanding those submissions. Once the decision is received, an administrative appeal (recurso de alzada) must be lodged.
in accordance with the Common Administrative Procedure Act, once notification confirming the penalty decision is received, a claim must be brought before the employment tribunal. The administration is always required to issue a ruling, so you may either wait for that ruling before bringing the claim, or bring it after three months have elapsed from the date the administrative appeal was lodged — depending on how urgently you need to proceed.
- Payment of the penalty:
Be cautious about paying a penalty on the assumption that the amount is manageable, if it is accompanied by a benefit surcharge. The penalty amount and the surcharge are two separate things. In more than one case, a company has paid the penalty without realising that the benefit surcharge can exceed €100,000.
- Expiry of proceedings:
Case law establishes that administrative proceedings may lapse after 135 days from the date on which the sanctioning procedure was initiated. This does not apply, however, to the benefit surcharge. See here the ruling of the Supreme Court of 15 September 2009.
ACCIDENT PREVENTION:
In our view, and based on the many years we have spent advising on workplace accidents, the Occupational Risk Prevention Act has been an effective instrument in reducing workplace accidents. Since 1995, the Labour Inspectorate has progressively stepped up enforcement of the obligations it imposes.
There are certain provisions which we consider to function as broadly-worded penal rules and which the authorities frequently invoke to impose sanctions — in our view, Articles 14 and 15 of the Occupational Risk Prevention Act fall into this category. In general, however, the Act sets out basic obligations such as workplace risk assessment, planning of preventive activities, training, the provision of PPE (personal protective equipment), medical check-ups, and so on.
We have spent years advising on occupational risk prevention with the dual aim of ensuring compliance with the Occupational Risk Prevention Act and ensuring that the work carried out by Prevention Services can be evidenced in court, so as to mount a stronger defence in workplace accident cases. We have provided advice on gender-based violence in the workplace, sexual harassment, and workplace bullying (moral harassment).
We also help companies to be better prepared in the event of any breach of these obligations, which are subject to sanctions under Articles 11 to 13 of the Law on Infringements and Sanctions in the Social Order (LISOS), with penalty amounts set out in Article 40.2 of the same LISOS.
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Psychosocial risk assessment:
One of the obligations that the Labour Inspectorate is already requiring is a psychosocial risk assessment. This involves measuring workplace stress, workload intensity, task repetition, employee autonomy, work-life balance, and similar factors — and it is typically not included in the risk assessments carried out by external occupational health and safety services.
This is a requirement that can be useful for preventing risks arising from stress or burnout at work, for identifying situations of harassment, but also for directly promoting a better work-life balance, or even for ensuring greater compliance with workplace equality obligations.
In any case, we are confident that the new regulations relating to the obligation to record daily working hours, as well as work-life balance procedures, will mean that this requirement is increasingly demanded by the Labour Inspectorate, or raised by employees themselves or their representatives.
If you would like to speak to a workplace accident specialist, please get in touch with us.
