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Since the enactment of Law 31/1995 of 8 November, workplace risk prevention has been a constant obligation of the employer. Employers have a duty to protect workers from occupational risks and, as such, bear ultimate responsibility for all actions taken in this area within the company. The recent Royal Legislative Decree 5/2000 of 4 August, the Consolidated Text on Infringements and Sanctions in the Social Order, reaffirms that workers' right to effective protection in matters of occupational health and safety carries with it a corresponding ongoing duty on the part of the employer to protect workers from occupational risks. In fulfilling this duty of protection, the employer must ensure the safety and health of all workers in their employ in every aspect related to work. To this end, and within the framework of the responsibilities set out below, the employer must comply with a series of obligations:
EMPLOYER OBLIGATIONS IN THE FIELD OF WORKPLACE RISK PREVENTION:
· OBLIGATIONS WHOSE BREACH CONSTITUTES A MINOR INFRINGEMENT:
1.- Failure to maintain cleanliness in the workplace, provided this does not give rise to any risk to the physical integrity or health of workers.
2.- Failure to report, in due time and form, to the competent labour authority any workplace accidents or declared occupational illnesses classified as minor.
3.- Failure to notify the competent labour authority of the opening of a workplace or the resumption or continuation of work following significant alterations or extensions.
4.- Any breach of workplace risk prevention regulations that does not carry serious implications for the physical integrity or health of workers.
5.- Any other breach relating to formal or documentary obligations required under workplace risk prevention regulations that is not classified as serious or very serious.
· OBLIGATIONS WHOSE BREACH CONSTITUTES A SERIOUS INFRINGEMENT:
1.- Failure to carry out risk assessments or their updates and reviews, as well as the periodic monitoring of working conditions and employee activities required under occupational health and safety regulations, or failure to implement the preventive measures made necessary by the results of those assessments.
2.- Failure to carry out the required medical examinations and periodic health surveillance tests for employees, or failure to communicate the results to the employees concerned.
3.- Failure to notify the labour authority, in due time and form, of workplace accidents that have occurred and occupational illnesses that have been reported where these are classified as serious, very serious or fatal, or failure to conduct an investigation where harm to the health of affected employees has resulted.
4.- Failure to record and archive the data obtained from assessments, inspections, medical examinations, investigations or reports.
5.- Failure to notify the labour authority of the opening of a workplace or the resumption or continuation of work following significant alterations or extensions.
6.- Failure to fulfil the obligation to carry out preventive activity planning identified as necessary by the risk assessment.
7.- Assigning employees to roles whose conditions are incompatible with their personal characteristics, or allocating tasks to employees without taking into account their professional competencies in occupational health and safety.
8.- Failure to provide employees with adequate and sufficient training and information regarding workplace risks capable of causing harm to their safety and health, and regarding the applicable preventive measures.
9.- Exceeding the exposure limits for hazardous agents.
10.- Failure to implement the required measures regarding first aid, fire-fighting and employee evacuation.
11.- Breach of employees' rights to information, consultation and participation.
12.- Failure to provide appropriate training or adequate resources to employees designated to carry out prevention activities and to health and safety representatives.
13.- Failure to adopt the necessary cooperation and coordination measures for the protection and prevention of occupational risks at workplaces where employees of two or more companies carry out activities.
14.- Failure by the developer or the employer who controls the workplace to inform others of the risks and the applicable protection, prevention and emergency measures.
15.- Failure to designate one or more employees to handle protection and prevention activities within the company, or failure to organise or engage a prevention service where this is mandatory.
16.- Any other breach of occupational health and safety regulations that creates a serious risk to the physical integrity or health of employees.
17.- Lack of cleanliness where this is habitual or where it gives rise to risks to the physical integrity and health of employees.
18.- Breach of the duty to inform employees designated to handle prevention activities, or where applicable the prevention service, of the recruitment of workers under temporary employment arrangements.
19.- Failure to provide the prevention service with access to information and documentation.
20.- Failure to subject the company's prevention system to an external audit or evaluation where the prevention service has not been engaged with a specialist body external to the company.
21.- Withholding from the labour authority data that should have been recorded concerning specialist bodies acting as external prevention services for companies, or bodies carrying out audits of companies' prevention systems.
· OBLIGATIONS WHOSE BREACH CONSTITUTES A VERY SERIOUS INFRINGEMENT:
1.- Failure to comply with the specific rules on protecting the health and safety of workers during pregnancy and breastfeeding periods.
2.- Failure to comply with the specific rules on protecting the health and safety of minors.
3.- Failure to immediately halt or suspend work when required to do so by the Labour Inspectorate or Social Security, or resuming work without having first remedied the causes that gave rise to the stoppage.
4.- Assigning workers to positions whose conditions are incompatible with their known personal characteristics.
5.- Breaching the duty of confidentiality in the use of data relating to workers' health surveillance.
6.- Exceeding exposure limits to harmful agents that give rise to risks of serious and imminent harm.
7.- Failure to adopt cooperation and coordination measures, and failure by the promoter or employer to inform workers of the risks and the protective, preventive and emergency measures in place, where the activities in question are considered hazardous or involve special risks.
8.- Failure to adopt preventive measures applicable to working conditions that give rise to a serious and imminent risk to the health and safety of workers.
9.- Where training activities, audits, or activities carried out by external prevention services are performed by entities that lack the required accreditation or authorisation.
EMPLOYER LIABILITY:
There are three types of legal liability that an employer may incur for failure to comply with occupational risk prevention regulations:
A.- ADMINISTRATIVE LIABILITY:
This arises from breaches of statutory and regulatory provisions, or of the normative clauses of collective bargaining agreements on occupational health and safety. Failure to fulfil these obligations constitutes infringements that are penalised as follows:
- Financial penalties or fines: these may be minor, serious, or very serious depending on the level of risk involved. Fines for minor infringements may reach up to 250,000 pesetas, for serious infringements up to 5,000,000 pesetas, and for very serious infringements up to 100,000,000 pesetas.
- Temporary suspension and closure: this measure may be ordered where circumstances of exceptional gravity are identified, while maintaining workers' entitlement to receive their salary.
- Work stoppage: this is justified by the serious and imminent risk that the absence of the relevant safety measures poses to workers.
- Surcharges on benefits: where a work-related accident or occupational illness is caused by a breach of the statutory rules on workplace safety, the National Social Security Institute (INSS) may impose a surcharge of between 30% and 50% on the financial benefits that employers pay under the headings of work-related accidents and occupational illness.
- Increased premiums: this consists of an increase of up to 20% in the premiums payable to Social Security by companies that fail to comply with safety measures.
- Direct payment of benefits: companies required to carry out scheduled and periodic medical examinations for workers in posts carrying a risk of occupational illness may be held directly liable for all resulting benefits if workers contract the illness as a consequence of the company's failure to fulfil that obligation.
- Disqualification penalty: persons responsible for serious and repeated breaches of occupational safety rules may be sanctioned by the Government with disqualification from carrying out their functions.
B.- CIVIL LIABILITY:
The employer bears civil liability both where there is a straightforward breach of the duty to ensure health and safety, and where such a breach results in a work-related accident, giving rise to a claim for damages and compensation.
C.- CRIMINAL LIABILITY:
Criminal law protection is designed to safeguard the life, physical integrity, and health of workers in the circumstances and situations set out in the Spanish Criminal Code. Article 316 of the Criminal Code establishes as a criminal offence the conduct of 'those who, in breach of occupational risk prevention 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', punishable by custodial sentences of between six months and three years and a fine of six to twelve months.
If you need a lawyer specialising in work-related accidents, please get in touch:
If you need guidance on how to handle a work-related accident, please see this guide on what to do following a work-related accident.
