EMPLOYER LIABILITIES<\/p>\n
18 years of the Occupational Risk Prevention Law in Spain<\/em><\/p>\n To mark the 18th anniversary of the Occupational Risk Prevention Law, and with the aim of continuing to implement a preventive culture, I wish to convey to employers the importance of this law and the responsibilities it entails.<\/p>\n The commitment to prevention stems from the \u201coccupational risk prevention policy,\u201d which must be signed personally by the employer and their board of directors.<\/p>\n Mining techniques are considered a high-risk activity, as described in sections e) and f) of Annex 1 of RD 39\/1997, which specifies: \u201cActivities involving the manufacture, handling, and use of explosives, including pyrotechnic articles and other objects or instruments containing explosives<\/em>\u201d and \u201cMining work in open-pit and underground mines, and drilling on land or offshore platforms.<\/em>\u201d For this reason, it is particularly relevant to have first-hand knowledge of the liabilities arising from a lack of prevention. <\/p>\n The State, through its Institutions and Bodies, is obliged to monitor and control compliance with occupational safety standards, as provided for in Art. 40.2 of the Spanish Constitution, which establishes that public authorities \u201cshall ensure safety and hygiene at work<\/em>.\u201d This control has an essential framework of reference in Law 31\/1995 on Occupational Risk Prevention, Art. 1 of this Law, supplemented by the rest of the general and sectoral preventive-labor regulations expressly referred to in Art. 1 of the law itself. <\/p>\n The Occupational Risk Prevention Law itself establishes the consequences of non-compliance with preventive-labor regulations, stating in Art. 42.1 that \u201cnon-compliance by employers with their obligations regarding occupational risk prevention shall lead to administrative liabilities, as well as, where applicable, criminal and civil liabilities for damages that may arise from said non-compliance<\/em>,\u201d from which the existence of three types of liability in our legislation can be deduced: administrative, civil, and criminal.<\/p>\n The Courts of Justice are responsible for the ultimate interpretation of preventive regulations, given the adjudication that may be carried out in social, administrative, civil, and criminal proceedings regarding compliance with obligations derived from the Occupational Risk Prevention Law. Therefore, it is important to understand the direction and orientation of jurisprudence in a field where references to indeterminate concepts are frequent, such as sufficient protection, adequate means, direct professional criteria, imminent danger, risk predictability, specificity of training, etc. <\/p>\n Administrative Liability:<\/em><\/strong><\/p>\n Administrative Liability translates into the possibility of being sanctioned for non-compliance with labor regulations, and specifically, for occupational risk prevention regulations.<\/p>\n The sanctioning body is the Labor and Social Security Inspectorate, which, acting ex officio or upon complaint, will visit and\/or request documentation from a company. If a possible breach is identified, it may choose to require its rectification (setting a deadline), halt work (if a serious and imminent risk is perceived), or directly propose a sanction. (Several of the aforementioned actions may be carried out simultaneously). <\/p>\n The proposed sanction will be formalized through an Infringement Notice (to use a simile, it would be like a traffic ticket), which must subsequently be ratified by the corresponding administrative body.<\/p>\n The Inspector will record the observed facts, cite the infringed provisions, apply the corresponding type of infringement, and grade and quantify their proposed sanction.<\/p>\n Infringements are defined in Royal Legislative Decree 5\/2000, of August 4, which approves the revised text of the Law on Infringements and Sanctions in the Social Order, corresponding to the infringements provided for in the same legal text, according to their severity.<\/p>\n The sanctioning procedure regarding occupational risk prevention is regulated by Royal Decree 928\/1998, of May 14, which approves the General Regulations on procedures for imposing sanctions for social order infringements and for Social Security contribution settlement files.<\/p>\n The severity of sanctions is classified as minor, serious, and very serious. Some examples of sanctions include: <\/p>\n Article 40 of RDL 5\/2000 establishes the sanction amounts: minor in their minimum, medium, and maximum degrees (\u20ac40 to \u20ac2,045); serious in their minimum, medium, and maximum degrees (\u20ac2,046 to \u20ac40,985); and very serious in their minimum, medium, and maximum degrees (\u20ac40,986 to \u20ac819,780).<\/p>\n Furthermore, the following deadlines are noteworthy due to their importance:<\/p>\n The expiration of the sanctioning procedure is 6 months from the date of the Infringement Notice until the notification of the sanctioning Resolution, if any, as provided in Article 20: \u201c3. The maximum period for resolving sanctioning files for social order infringements shall be six months, computed from the date of the notice until the date the resolution is issued; if this period is exceeded, the file shall expire. <\/strong>When exceptional circumstances occur, an extension of this maximum period may be agreed upon, under the terms provided in Article 42.6 of Law 30\/1992, of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure.\u201d<\/em><\/p>\n The statute of limitations for infringements in occupational risk prevention, according to the aforementioned Article 4 of RDL 5\/2000, of August 4, which approves the revised text of the Law on Infringements and Sanctions in the Social Order, occurs: after one year for minor offenses, three years for serious offenses, and five years for very serious offenses, <\/strong>counted from the date of the infringement.<\/p>\n The most frequent sanctions are serious ones at their minimum amount, but it is not uncommon for certain circumstances (workplace accident, number of affected workers, danger of the activity…) to increase the amount and degree.<\/p>\n Likewise, it must be considered that infringements relating to certain aspects (maternity protection, minors, especially sensitive workers) or certain activities (legally considered dangerous) would lead to classification as a very serious offense.<\/p>\n Regarding offenders, according to Article 45 of Law 31\/1995 on administrative infringements, \u201clabor infringements in occupational risk prevention are the actions or omissions of employers, those of Entities acting as Prevention Services, audits, and training in this matter external to companies, as well as those of project promoters and site owners and self-employed workers, who fail to comply with legal and regulatory standards and normative clauses of collective agreements regarding occupational safety and health, subject to liability under this Law.\u201d<\/p>\n Civil Liability:<\/em><\/strong><\/p>\n Civil liability derives from the harmful results that may have occurred as a consequence of the preventive-labor infringement, i.e., in cases of workplace accidents resulting in the death or injury of one or more workers. In these cases, regardless of whether the event generates benefits under Social Security regulations derived from temporary disability, or partial, total, or absolute disability for the worker, or a pension for beneficiaries, a civil liability is generated, known as additional liability. This can be claimed before the Criminal Jurisdiction, together with the criminal action derived from the infringement, in cases where liabilities are being determined in that area, or before the Civil Jurisdiction or the Social Jurisdiction. Both have been considered competent, the former based on it being a manifestation of liability for extra-contractual fault and the latter based on it being a consequence of a breach of the employment contract. According to the current Law on Social Jurisdiction, this issue has been resolved by establishing the attractive jurisdiction of the social courts. <\/p>\n Civil liability is based on the provision of Article 1902 of the Civil Code: “He who by action or omission causes damage to another, involving fault or negligence, is obliged to repair the damage caused<\/em>.”<\/p>\n Likewise, by virtue of Articles 1093 of the same Civil Code and 120 of the Penal Code, the employer shall be liable for damages caused by their employees, provided they occurred in the performance of their duties.<\/p>\n In turn, the injured party may be a natural or legal person (for example, the halting of a construction project due to a breach by the contractor company).<\/p>\n As can be inferred, actions in occupational risk prevention are likely to generate multiple situations for civil claims.<\/p>\n Unlike administrative liability, where an Infringement Notice can be issued for non-compliance with regulations without an accident having occurred (for example, for lack of preventive training for a non-injured worker), and unlike the crime against worker safety, which is applicable for creating a serious risk to the life and integrity of workers even without injuries occurring; civil liability does require the occurrence of damage that must be financially repaired.<\/p>\n To meet possible compensation payments, it is important for companies (including External Prevention Services) to have a civil liability policy that covers damages that may arise from the actions of their employees.<\/p>\n Criminal Liability:<\/em><\/strong><\/p>\n Finally, non-compliance with preventive labor regulations can generate criminal liability, both in cases where harmful results (death or injury of one or more workers) have occurred as a consequence of said non-compliance\u2014in which case it is prosecuted through negligent criminal offenses\u2014and in those cases where, even without such results, a serious risk to the life or health of workers has been generated.<\/p>\n Criminal law is the most rigorous manifestation of the State’s “ius puniendi” against its citizens, protecting legal assets considered relevant to society: life, physical integrity, the environment, occupational safety, etc.<\/p>\n According to the principle of minimum intervention, the criminal sphere must be residual in nature, meaning it should only intervene in very serious events and when other protection mechanisms have failed.<\/p>\n Nevertheless, growing sensitivity toward occupational health and safety is leading to an increase in criminal proceedings in this area.<\/p>\n Specialized prosecutor’s offices have been created, and prosecutors have instructions to be proactive in the prosecution of possible crimes related to occupational risk prevention.<\/p>\n The ways to initiate a criminal process can be diverse:<\/p>\n Crimes related to Occupational Risk Prevention<\/em><\/p>\n Actions in occupational risk prevention can lead to workers being exposed to working conditions that pose a danger to their lives, and as a result, they may suffer injuries or even lose their lives.<\/p>\n Criminal law prosecutes both situations: both the creation of the risk and the occurrence of the undesired result.<\/p>\n In this way, we distinguish between:<\/p>\n This group includes the crime against worker safety, defined in Articles 316 to 318 of the Penal Code.<\/p>\n The protected legal asset is occupational safety.<\/p>\n The protected legal assets are not specifically preventive: life, physical integrity, procreation, and privacy, but they can be harmed by actions related to occupational risk prevention.<\/p>\n The combination of both types of crime can lead to:<\/p>\n For example: the only worker using the machine gets their hand caught due to the absence of a guard.<\/p>\n For example: a worker fell from scaffolding due to the absence of collective measures, but all workers who used it ran the risk of falling.<\/p>\n This situation is the most frequent and leads to the requested penalties being of greater severity.<\/p>\n Having analyzed the employer’s liabilities in occupational risk prevention, it only remains to highlight that the only way to carry out prevention plans within a company starts with the leadership and commitment of management toward prevention.<\/p>\n Rosa Luz Carre\u00f1o Gonz\u00e1lez.<\/p>\n Technical Mining Engineer.<\/p>\n Official University Master’s Degree in Occupational Risk Prevention.<\/p>\n Member of the Official College of Technical Mining Engineers of Madrid.<\/p>\n","protected":false},"excerpt":{"rendered":" EMPLOYER LIABILITIES 18 years of the Occupational Risk Prevention Law in Spain To mark the 18th anniversary of the Occupational Risk Prevention Law, and with the aim of continuing to implement a preventive culture, I wish to convey to employers the importance of this law and the responsibilities it entails. The commitment to prevention stems […]<\/p>\n","protected":false},"author":4,"featured_media":79104,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[156],"tags":[],"class_list":["post-79103","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"acf":[],"yoast_head":"\n\n
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