Is it possible to effectively limit the risk of criminal liability for work accidents?
An accident on the job generates a range of legal consequences. One of the most serious is the potential for the individual at the employer responsible for occupational health and safety to be held criminally liable.
The practice shows that law enforcement authorities in Poland seek to blame work accidents on someone within the group of “managing employees” running the enterprise.
Is it possible to structure the management and define the scope of individuals’ duties to exclude or limit this risk? We present our perspective in this article.
More and more fatal accidents
According to preliminary data from Statistics Poland (GUS), the number of persons injured in work accidents in the country in 2017 (reported using the statistical accident form Z-KW) totalled 88,330. This thus reduced the accident rate (the number of injured persons per 1,000 working people) from 7.07 in 2016 to 6.84 in 2017.
Among the total of 88,330 injured workers, 87,400 suffered mild injuries, 661 suffered serious bodily injury, and 269 died. The number of fatal work accidents rose by 12.6% from 2016.
But according to GUS data, in 60.5% of instances in 2017, the cause of the accident was “improper behaviour by an employee” and in only 4.3% was the accident blamed on “improper organisation of work.”
Under Criminal Code Art. 220, the person who bears criminal liability for a work accident is the person responsible for occupational health and safety who failed to perform his or her duties, thus causing an immediate danger of loss of life or serious harm to an employee’s health. This offence is prosecuted as a public offence.
We note immediately that under current law, criminal liability is borne by an individual with specific characteristics (responsible for occupational health and safety), and not the employer as an organisation. This point may be relevant in light of the recent proposal for a new Act on Criminal Liability of Collective Entities, clearly indicating that lawmakers would like businesses as collective entities to also bear criminal responsibility for work accidents.
As the Criminal Code does not define the notion of “person responsible for occupational health and safety,” we need to consult employment law.
Who can be responsible for occupational health and safety in a company?
Under Labour Code Art. 207, the employer is responsible for the state of health and safety at the workplace, and the scope of this liability is not affected by employees’ duties in the area of occupational health and safety or entrustment of performance of health and safety tasks to external specialists.
Labour Code Art. 283, which provides for liability for petty offences, refers to a person who, “being responsible for occupational health and safety or directing employees or other natural persons,” fails to comply with occupational health and safety regulations.
For purposes of the Labour Code, “employer” means an organisational unit (even without legal personality), or an individual, if they employ employees. Actions involving labour law are performed for an employer which is an organisational unit by the person or body managing the unit, or by another designated person. In the case of a limited-liability company (sp. z o.o.), the managing body is the management board, and thus it may be assumed that as a rule, responsibility for occupational health and safety will rest on the management board or its individual members.
Apart from the employer within the meaning of the Labour Code, a person directing employees may also be responsible for occupational health and safety. A “person directing employees” is understood to mean:
- The director of the workplace
- The director’s deputies
- Directors of organisational units at the establishment
- Directors of work teams (foremen)
- Line workers appointed to assist in performing assigned tasks of other employees and made responsible for performance of the assigned work.
A director may be someone heading an entire division, or could also be a person heading a group of just a few subordinates, and thus, for example, a construction supervisor.
When this inconsistent terminology is compared with the terms of the contracts in force with specific staff (their scope of duties and entitlements at specific jobs), it can lead to curious situations where the prosecutor must appoint an expert to determine who is responsible for occupational health and safety at a given workplace. And additional problems also arise in practice. The Social Labour Inspectors Act imposes on the workplace labour inspector a duty to take certain actions, including to halt work in situations posing an immediate danger of an accident. This presents yet another authorised person, statutorily obligated to act, who has specific obligations in the area of occupational health and safety.
It is a common practice in Poland to outsource occupational health and safety tasks to external service providers who do not “direct employees” and are not the employer.
Moreover, there are specific rules for occupational health and safety for different sectors of the economy. There are also many ventures in which numerous employers work on a single project. This complicates any subsequent criminal proceeding, generating significant risks for the employers.
In the case of ventures in which people are hired by various employers to perform work in the same location, the employers are required to cooperate with each other, establish rules for working together, including how to proceed when dangers arise, and keep each other informed of measures taken to counter occupational threats arising during their work.
One of the more important obligations in such situations is to appoint a coordinator supervising the occupational health and safety of all employees working at the same place, e.g. on a construction site.
However, the law does not vest any particular entitlements in the coordinator enabling him or her to influence the employers’ compliance with occupational health and safety standards. Thus it may turn out that in practice the coordinator can only point out dangers observed on the site and recommend particular actions, without being equipped with any real tools for enforcing those decisions.
Appointment of such a coordinator does not relieve the individual employers of their responsibility for occupational health and safety. But as a rule their responsibility extends only to their own employees.
In the case of on-the-job accidents, prosecutors seek the perpetrators among the members of the managerial personnel, with sometimes surprising results considering the complexity of the situation and structure of the employer in question. How easy it is to ascribe responsibility under Criminal Code Art. 220 is well illustrated by the Supreme Court of Poland judgment of 19 February 2012 (Case IV KK 216/12), where the court held: “The assignment of occupational health and safety obligations within the meaning of Labour Code Art. 212 does not require any special form, and in particular such duties need not be provided for in the employment contract or other source of the working relationship under which the person directing employees is hired, nor must they be included within the scope of activities. The mere fact of exercising supervision over employees makes such persons, as persons directing employees, the subject of the obligations set forth in Labour Code Art. 212.”
So is there any possibility for entirely eliminating or at least significantly limiting the risk of liability under Criminal Code Art. 220?
In our view, entirely eliminating such risk does not seem possible. Acknowledging that the greatest risk is usually posed by “human error,” the possibility of a mistake must also be provided for.
However, we do believe it is possible to significantly limit the risk of liability. Art. 220 of the Criminal Code is constructed in such a way that there must be an adequate causal connection between the perpetrator’s failure and the consequence of immediate danger or detriment to health. In other words, with better identification of risks, implementation of protective measures, proper training of staff, and, first and foremost, close supervision by specific, competent people of processes presenting any danger to employees, the risk of liability being imposed on incidental persons who are not directly connected to the accident but might be regarded as persons “directing employees” is reduced accordingly.
A consequence of the more and more common audits on occupational health and safety compliance should be to review the organisational structure and the allocation of duties to staff “directing employees” in areas where significant risks to the life and health of employees are identified. We must stress that the risk cannot be excluded, but it can be limited to a narrow group of people. With this approach, incidents can be investigated quickly, errors can be addressed, and the disruption connected with criminal proceedings can be contained.
Maria Kozłowska, Janusz Tomczak, adwokat, Business Crime practice, Wardyński & Partners