Pursuant to Article 220 of the Penal Code, anyone who, being responsible for occupational health and safety, fails to fulfil the resulting obligation and thereby exposes an employee to direct danger of loss of life or serious bodily harm shall be subject to a penalty of imprisonment for up to 3 years.
Liability for this offence will only be attributed to the natural person responsible for occupational health and safety at the workplace.
Pursuant to Article 15 of the Labor Code, the person responsible for safe and hygienic working conditions in the workplace is primarily the employer.
The broadest scope of authority and obligations rests with the employer, who is held responsible for the occupational health and safety of all persons performing work on the premises by the Labor Code. Thus, the employer becomes a guarantor of the absence of occupational accidents and a guarantor of the health and safety of employees while they are at work or performing work-related activities. Article 207 of the Labor Code states that the scope of employer liability is not affected by employees' obligations in the area of occupational health and safety, nor by entrusting the performance of occupational health and safety service tasks to specialists from outside the workplace, as referred to in Article 237(11) § 2 of the Labor Code .
Pursuant to Article 207 § 1 item 1 of the Labor Code, the employer is obligated to provide information about threats to health and life occurring in the workplace. Ultimately, the employer is obligated to take protective and preventive measures to eliminate potential threats.
As indicated in case law, the employer has a special legal obligation to prevent a potential accident at work. This obligation is not only imposed directly by Article 2 of the Penal Code, but also clearly stems from Article 220 of the Penal Code. However, the court should first determine whether there is a normative connection between the defendant's omission, as determined by the court, and the consequence of exposing the injured party to at least the immediate danger of loss of life or serious bodily harm, which would constitute criminal liability for the defendant under Article 220 of the Penal Code (Supreme Court decision of November 8, 2013, III KK 302/13). Therefore, in order to attribute potential criminal liability to the employer, it must be demonstrated that a causal connection existed between the specific violation of applicable occupational health and safety regulations and the accident.
The regulations stipulate that the employer is liable. However, our experience, as well as case law and legal doctrine, indicates that the person who actually managed the employees is liable: the "person managing the employees" or the "person managing the establishment ." This refers to the person designated, based on a separate power of attorney, as responsible for ensuring compliance with occupational health and safety regulations. When assessing potential criminal liability, the factor that is considered important is who was actually responsible for the state of occupational health and safety at the workplace.
In order to avoid possible severe criminal liability, a number of preventive measures should be taken, including: defining occupational health and safety instructions, specifying detailed occupational health and safety requirements for the performance of particularly dangerous work, and also developing: instructions for the use of technological processes in the plant, instructions for performing work related to accident hazards, a list of particularly dangerous work occurring in the workplace, preparing a list of work that requires the performance of at least two people.
The preventive measures presented here are only a fraction of those that should be taken. To develop detailed procedures, we recommend contacting our lawyers who will assist you.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 21, 2023
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