The Supreme Court has clarified that members of the health and safety committee acting on behalf of the company do not have the same guarantees as members of the Works Council, given that the performance of their functions is not conditioned by the fear of retaliation.
The health and safety committee is the body in charge of the regular and periodical checks on the company’s acts relating to occupational risk prevention. The committee is comprised of prevention delegates, on the one hand and by the employer and/or the same number representatives, on the other (article 38 of Law 31/1995, of November 8, 1995 on Occupational Risk Prevention, LPRL).
Prevention delegates are appointed by and from the worker’s legal representatives and, therefore, have the same guarantees, as expressly stated in articles 35 and 37.1 LRPL However, the members that act on behalf of the company are freely appointed, without the LPRL expressly regulating any specific guarantees for such persons as members of the health and safety committee.
At this stage, everything appears to be in order. Nevertheless, in 2021, the Labor Chamber of the Supreme Court had to resolve an appeal in cassation for a definitive ruling on a point of law, in which the issue was debated.
Specifically, in judgment 1244/2021, issued on December 9, 2021, the Supreme Court analyzed the case of a worker appointed by the company as a member of the health and safety committee that claimed the right to guarantees, consisting of (i) the adversarial process prior to dismissal, contemplated in article 68.a) of the Workers’ Statute, and (ii) his right to choose between reinstatement or termination of his labor relationship, in the event of unjustified dismissal, as regulated in article 56.4 of the Workers’ Statute, like a worker’s legal representative.
The worker claimed the application of such guarantees pursuant to the provisions of article 13.1 and 30.4 L PRL, which states as follows:
- “Compliance with the duty to prevent occupational risks, the employer shall appoint one or more workers to carry out such activities, set up a prevention service or engage said service with a specialized entity outside the company.
- The workers appointed shall not suffer any detriment resulting from their professional risk prevention protection activities at the company. In performing this function, the workers shall specifically be subject to the guarantees established for worker representatives in points a), b) and c) of article 68 and section 4 of article 56 of the revised Workers’ Statute Law. […].”
The Supreme Court resolved to dismiss the appeal by the worker, considering that the following figures cannot be considered the same and must therefore be differentiated:
- Prevention delegates, who do have the legal worker representative guarantees established in article 68 of the Workers’ Statute (article 37.1 LPR L).
- The workers appointed by the employer to perform prevention activities at the company, who do have the same guarantees as worker representatives in points a), b) and c) of article 68 and section 4 of article 56 of the Workers’ Statute (article 30.4 L PRL).
- The members of the health and safety committee appointed by the company, which do not have any of said guarantees.
Therefore, although they are appointed by the employer, the workers that manage the company’s prevention activity in the interests of compliance with prevention regulations and staff protection, if required, can make decisions that conflict with the interests of those appointing them. This is precisely what justifies the extension of the guarantees granted to worker representatives.
However, the members of the health and safety committee (appointed by the employer) act in the interests of the company on said committee. Accordingly, the performance of their functions cannot be conditioned by the fear of retaliation by the employer, as there is no risk of detriment due to the demands required of their position from the employer, as they defend the interests of the employer against those of the worker’s representatives on said committee.
Nevertheless, there is still the option of the same person undertaking occupational risk prevention activities and, at the same time, being a member of the health and safety committee representing the employer. In such case, the person would have the same guarantees as a legal representative, not as a member of the committee, but rather his/her position in charge of prevention.
In short, a person acting on behalf of the company and in its interests cannot be granted guarantees against the employer and, therefore, the members of the health and safety committee appointed by the employer do not have any additional guarantees for the mere reason of being such a member.
Tatiana Alejandra Moreno
Garrigues Employment & Labor Law Department