What is the employer’s liability for health and safety offences and offences?
The employer’s obligations assume m.in ensuring working conditions consistent with health and safety regulations and principles, but also ensuring their observance. Any violation may result in liability for violation of the employee’s rights. For violations of the employee’s rights, the employer or the person managing the employees may be punished with a fine. In the case of health and safety offences, both the employer and the person managing the employees may be criminally liable.
One of the most important duties of the employer is to protect the health and life of employees by ensuring safe and hygienic working conditions with appropriate use of scientific and technical achievements. In particular, the employer is obliged to organize work in a manner that ensures safe and hygienic working conditions, ensure compliance with the regulations and principles of occupational health and safety in the workplace, issue orders to remedy deficiencies in this respect and control the implementation of these instructions. The employer must respond to the needs to ensure health and safety at work and adapt the measures taken to improve the existing level of protection of workers’ health and life, taking into account changing working conditions. It is obliged to ensure the development of a coherent policy to prevent accidents at work and occupational diseases, taking into account technical issues, work organization, working conditions, social relations and the influence of factors of the working environment. As part of the preventive measures taken, the employer should take into account the health protection of adolescents, pregnant or breastfeeding workers and disabled workers. It should also ensure the execution of orders, speeches, decisions and orders issued by the authorities supervising working conditions, as well as ensure the implementation of the recommendations of the social labour inspector.
Exposing an employee to the risk of loss of life or serious damage to health as a result of failure to comply with health and safety obligations by the employer is a crime subject to criminal sanctions indicated in the Act of 6 June 1997 – Criminal Code, hereinafter: kk.
As pointed out by the District Court in Ostrołęka in its judgment of 11 September 2013, II Ka 163/13, the mere failure to comply with OHS obligations by the employer already violates the employee’s right to work in safe and hygienic conditions and exposes him to an immediate danger of loss of life or serious damage to health, i.e. it is a crime.
In accordance with Article 220 § 1 of the Penal Code, the person responsible for occupational health and safety is responsible for intentional exposure of an employee to an immediate danger of loss of life or serious damage to health. The offender is subject to imprisonment for up to 3 years.
If the perpetrator acts unintentionally, under Article 220 § 2 of the Penal Code, he bears a milder responsibility and is subject to a fine, restriction of liberty or imprisonment for up to one year. On the other hand, the perpetrator who voluntarily lifted the imminent danger is not punishable at all.
If the employer fails to notify the competent authority of an accident at work or occupational disease within the deadline or fails to prepare or present the required documentation, the employer is subject to a fine of up to 180 daily rates or restriction of liberty (Article 221 of the Penal Code).
The employer’s obligations assume, in accordance with Article 234 § 2 of the Code of Civil Procedure, immediate notification of the competent regional labour inspector and prosecutor about a fatal, serious or collective accident at work and about any other accident that caused the above-mentioned effects, related to work, if it can be considered an accident at work.
On the other hand, the employer’s obligation to immediately report to the competent state sanitary inspector and the competent regional labour inspector any case of suspected occupational disease results from Article 235 § 1 of the Code of Civil Procedure.
As far as documentation is concerned, the employer is obliged m.in keep a register including cases of diagnosed occupational diseases and suspicions of such diseases or a register of accidents at work.
A person responsible for the state of occupational health and safety or managing employees or other natural persons, who was found not to have complied with the provisions or principles of occupational health and safety, is subject to a fine of PLN 1,000 to 30,000 (Article 283 § 1 of the Code of Civil Procedure).
Further offences in the field of non-compliance with the provisions on occupational health and safety are indicated in Article 283 § 2 of the Code of Civil Procedure. A fine may be imposed on anyone who:
- does not ensure that the construction or conversion of a work or parts thereof in which work premises are provided is carried out on the basis of designs which take account of health and safety requirements;
- does not equip the workplace with machinery and other technical devices that do not meet the requirements for conformity assessment;
- provide the worker with personal protective equipment which does not comply with the conformity assessment requirements;
- uses materials and technological processes without prior determination of the degree of their harm to the health of workers and without taking appropriate preventive measures,
- uses chemical substances and their mixtures that are not visibly labelled and allow their identification,
- uses dangerous substances, hazardous mixtures, hazardous substances or hazardous mixtures without safety data sheets and packaging to protect against their harmful effects, fire or explosion;
- does not notify the competent regional labour inspector, prosecutor or other competent authority about a fatal, serious or collective accident at work and about any other accident that caused the above-mentioned effects, related to work, if it can be considered an accident at work, does not report an occupational disease or suspicion of such a disease, does not disclose an accident at work or an occupational disease, or presents false information, evidence or documents concerning such accidents and diseases;
- does not execute within the prescribed period the order of the National Labour Inspectorate body;
- hindering the activities of the PIP body, in particular preventing inspections of the workplace or failure to provide information necessary to perform its tasks;
- allows a child to perform work or other gainful activities until the age of 16 without the permission of the competent labour inspector.
The employer’s obligations are not only to ensure working conditions consistent with health and safety rules, but also to ensure that they are observed. Any violation of health and safety regulations may result in liability for an offence against the employee’s rights referred to in Article 283 of the Code of Civil Procedure. For violations of the employee’s rights, the employer or the person managing the employees may be fined from PLN 1,000 to 30,000. In the case of health and safety offences, both the employer and the person managing the employees may be criminally liable. If the employer fails to comply with its obligations to ensure safe and hygienic working conditions and thus exposes employees to loss of health or life, he is subject to imprisonment for up to 3 years. However, it may happen that the employer’s negligence is unintentional. In this case, he is subject to imprisonment for up to one year or restriction of liberty or a fine. In addition, if the employer has voluntarily removed the imminent danger, he will not be subject to the anticipated penalties. He is also obliged to notify the competent authorities of an accident at work or an occupational disease. In the event of failure to comply with this obligation, the employer is subject to a fine of 180 daily rates or restriction of liberty.
Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.
