As a basic foundation of occupational risk prevention obligations, Law 31/1995 of November 8, 1995 (LPRL) establishes the employer as the principal guarantor of the health and safety of the employees under its charge, given that it is the title holder of the authority of management and organization of the company. This involves liability on the part of the employer in a labor environment and, in particular, for the prevention of occupational risks, the assessment of which must be integrated into the corporate compliance system.
It is becoming more and more important to establish integrated occupational risk prevention management systems, especially when the Criminal Code attributes criminal liability “to the directors or those in charge of the service that are responsible” (prevention officers, HR managers, production managers, etc.) for the crimes that may be attributed to them for work-related accidents, even if the company has implemented a crime prevention/criminal compliance plan.
All the international standards related to legal compliance management in general propose “reference frameworks” based on a structural and integrated approach within the organization itself.
In Spain, especially since the 2015 reform of the Criminal Code and the birth of crime prevention/criminal compliance plans, these management systems have been implemented and essentially based on the organic interiorization of authentic corporate social responsibility for how the organization acts and a culture based on the principle of “compliance and ensuring compliance” at all levels.
Labor compliance has traditionally been the ignored area, especially the prevention of occupational risks, despite the fact that it is increasingly more frequent to see employers charged as natural persons for accidents resulting in serious bodily harm and even death in labor environments. This takes place irrespective of the other administrative liabilities, civil liability for damages and surcharges on social security benefits that also normally apply in these situations.
Under this new perspective of the strategic management of labor relations, from an occupational risk prevention approach, the company management assumes the commitment to apply the fundamental values and standards of effective, efficient and material integration of a preventive culture at the company. This is also consistent with the instructions contained in ISO 45001, an international standard that establishes multiple requirements, whose compliance is oriented towards enabling organizations to provide safe and healthy workplaces and prevent injury and the deterioration of health.
In this regard, the road maps of responsibility in occupational risk prevention constitute compliance management systems that attempt to integrate all prevention regulations under the same umbrella of the occupational risk prevention plan, in accordance with the principles of ongoing improvement of preventive integration and the responsible compliance with the set of prevention rules, through a road map of responsibilities that efficiently delegates functions, obligations and responsibilities to different members of the organization with the sufficient ability and training.
Circular 4/2011 issued by the Public Prosecutor’s Office for Industrial Accidents states that “we must make sure not to fall into automatically attributing criminal liability to those that are, in theory, only formally responsible for the safety of the workers. In addition to the formal criterion of being obliged to adopt safety measures according to labor legislation, we must add the material requirements of exercising management authority and freely reaching decisions relating to safety, given that the employer may have delegated this area either fully or partly to third parties”.
Responsibility road maps endeavor to apply the instructions contained in the Public Prosecutor’s Circular in order for companies to effectively implement the delegation of functions, in compliance with the requirements of i) the duty to appoint a person with sufficient capacity and training to perform the internal position of prevention compliance officer, ii) the duty of instrumental application, providing all the suitable means and required authority to control the sources of danger, and iii) the duty of control, in order to verify the correct performance of the delegated duties.
In short, only by means of effective compliance and the implementation and ongoing maintenance by the company of these duties can they be considered as fully delegated and the company therefore able to defend itself against any possible liability, even criminal, resulting from a work-related accident.
Francisco Javier Navarro Arias
Departamento Laboral de Garrigues
