Workplace accidents are among the most significant events that companies may have to manage from an employment and occupational health and safety perspective. Beyond their human and personal consequences for the employee concerned, a workplace accident may trigger administrative, preventive and judicial reviews of the safety measures implemented by the company.
Under Spanish law, the occurrence of a workplace accident does not automatically establish the company’s liability. However, where liability arising from the accident is disputed, the applicable legislation establishes specific rules regarding the evidence of the preventive measures adopted by the company.
Article 96.2 of Law 36/2011 regulating the Labour Courts provides that, in proceedings concerning liability arising from workplace accidents and occupational diseases, those responsible for workplace safety must demonstrate that they adopted the necessary measures to prevent or avoid the risk, as well as any factors that may exclude or reduce their liability.
A properly designed, implemented and documented prevention system is therefore not merely a compliance tool. It is also an essential element enabling a company to demonstrate how it has managed the risks associated with its activities.
The Employer’s Duty to Protect Employees’ Health and Safety
The general framework is established by the Law 31/1995 of 8 November on Occupational Risk Prevention.
The legislation establishes occupational risk prevention as an obligation integrated into the company’s organisation. Article 15 of the Law on Occupational Risk Prevention sets out the general principles of preventive action, including avoiding risks, assessing those that cannot be avoided, combating risks at source, adapting work to the individual and planning prevention by integrating technology, work organisation and working conditions.
Article 19 of the Spanish Workers’ Statute also recognises employees’ right to effective protection in matters of health and safety and establishes specific employer obligations regarding preventive training.
When an accident occurs, therefore, the assessment does not simply concern whether the company formally had a prevention plan in place. It may also involve determining whether the risks had been properly identified, whether the preventive measures were appropriate, whether they had actually been implemented and whether there was a connection between any breach of the company’s preventive obligations and the harm suffered.
Employer Liability Does Not Arise Automatically From an Accident
One point should be made clear from the outset: a workplace accident and employer liability are not the same thing.
An accident may have multiple causes, and not every workplace accident results from a breach by the employer.
To establish preventive liability, it is necessary to examine the specific circumstances of the accident, the obligations applicable to the company and the connection between any breach and the harm suffered.
However, where the matter reaches the Labour Courts, the company must be able to demonstrate the preventive measures it adopted. Article 96.2 of Law 36/2011 regulating the Labour Courts expressly establishes this specific evidential rule for proceedings arising from workplace accidents and occupational diseases.
This makes preventive documentation particularly important.
It is not enough for the company to have adopted certain measures. It must be able to demonstrate that those measures existed, that employees were aware of them and that they were effectively implemented in practice.
What Liabilities Can Arise From a Workplace Accident?
Failure to comply with occupational risk prevention obligations may give rise to different forms of liability, which may coexist depending on the circumstances.
Article 42 of the Law on Occupational Risk Prevention establishes that breaches of employers’ occupational risk prevention obligations may give rise to administrative and, where applicable, criminal and civil liabilities for the harm and losses resulting from the breach.
A Social Security benefit surcharge may also arise where the statutory requirements are met.
The assessment of a workplace accident should therefore be carried out from a comprehensive perspective rather than being limited to determining whether an administrative penalty may apply.
Administrative liability
The Labour and Social Security Inspectorate may initiate proceedings where there are indications that occupational risk prevention legislation has been breached.
The Consolidated Law on Social Offences and Sanctions (LISOS) establishes different offences relating to occupational risk prevention.
These include certain failures concerning the integration of prevention, inadequate risk assessments, failure to provide appropriate training and information and failure to investigate certain accidents or damage to health.
Article 12 of the LISOS expressly classifies certain failures to carry out or update risk assessments, implement preventive activities arising from their findings or investigate certain workplace accidents and health damage as serious offences.
The seriousness of the infringement and the specific circumstances will determine the corresponding administrative and financial consequences.
Social Security benefit surcharge
One of the most significant financial consequences is the Social Security benefit surcharge.
Article 164 of the General Social Security Law establishes a surcharge of between 30% and 50% on certain benefits arising from a workplace accident or occupational disease where the circumstances established by law are met, including the absence or inadequacy of protective measures or non-compliance with general or specific health and safety measures.
The surcharge is imposed directly on the employer responsible and cannot be insured against. Any agreement or insurance contract intended to cover, compensate or transfer the surcharge is legally void. The same provision also establishes that this liability is independent of and compatible with other liabilities that may arise from the infringement, including criminal liability.
The surcharge does not, however, arise automatically simply because an accident has occurred. The statutory requirements must be satisfied and there must be a connection between the preventive breach and the injury.
Civil liability
A workplace accident may also give rise to a claim for damages where employer liability exists.
Compensation may cover personal, financial and moral damage, depending on the circumstances of the case.
An employer’s civil liability insurance policy may be relevant for covering certain civil liabilities, but its specific scope, limits, deductibles and exclusions must always be examined.
Civil liability must, in any event, be distinguished from the Social Security benefit surcharge, whose insurance coverage is expressly prohibited by Article 164 of the General Social Security Law.
Criminal liability
Workplace accidents may also have criminal implications where the requirements established by the Criminal Code are met.
Articles 316 et seq. of the Spanish Criminal Code establish certain offences relating to breaches of occupational risk prevention rules where persons who are legally required to do so fail to provide the necessary means for employees to carry out their work under appropriate safety conditions, thereby creating a serious danger to their life, health or physical integrity.
Article 318 of the Spanish Criminal Code also establishes specific rules where these acts are attributable to legal entities, potentially extending liability to directors or persons responsible for the relevant operations and to those who, knowing of the circumstances and having the ability to remedy them, fail to adopt the necessary measures.
Criminal liability is therefore not necessarily limited to the company or legal entity in the abstract. It may extend to individuals who have effective management, organisational or supervisory responsibilities over working conditions.
Accident Investigation: An Essential Corporate Response
Once an accident has occurred, the company’s initial response may be decisive both for implementing corrective measures and for subsequently reconstructing what happened.
The first priority must always be to provide assistance to the affected employee and take the measures necessary to protect the safety of the rest of the workforce.
Once the immediate emergency has been addressed, the company should preserve, insofar as possible, the relevant evidence and conduct an appropriate investigation of the accident.
The investigation should establish what happened, identify the immediate and underlying causes, determine what preventive measures were in place and assess whether the prevention system needs to be modified or strengthened.
Depending on the circumstances, it may be necessary to examine the machinery or facilities involved, existing instructions, training provided, the provision and use of personal protective equipment, the risk assessment and any other relevant circumstances.
The investigation should not be approached solely as a means of identifying liability. Its preventive purpose is also to ensure that the accident does not happen again.
Suárez de Vivero advises companies on internal workplace investigations, including the reconstruction of events, preservation of evidence and legal assessment of potential breaches.
The Obligation to Review Preventive Measures After an Accident
An accident may reveal that a particular preventive measure was insufficient or that, although formally in place, it was not working effectively.
For this reason, the investigation should be connected to a review of the company’s prevention system.
Article 16 of the Law on Occupational Risk Prevention establishes the obligation to review the risk assessment where health damage occurs and a review is required.
The company must therefore assess whether the circumstances that led to the accident require changes to the risk assessment, preventive planning, training, working instructions or existing protective measures.
An investigation that simply ends with a report being filed, without incorporating its conclusions into the prevention system, loses much of its preventive value.
Coordination of Business Activities and Subcontracting
Managing workplace accidents can become particularly complex when employees from different companies work at the same site.
This situation commonly arises in construction projects, industrial facilities, shopping centres, production plants and outsourced services.
Article 24 of the Law on Occupational Risk Prevention establishes coordination obligations between companies operating at the same workplace, together with specific obligations relating to contracting and subcontracting.
In addition, Article 42.3 of the LISOS establishes, subject to the statutory requirements, specific liability for certain preventive breaches involving contractors and subcontractors.
Principal companies should therefore pay particular attention to information concerning risks, coordination measures, preventive documentation and the level of supervision required according to their position within the contractual chain.
Workplace Accidents in International Companies
Multinational companies often operate under global health and safety standards, commonly referred to as EHS standards.
These standards can provide a useful management framework, but they do not replace compliance with Spanish legislation.
Companies must ensure that their global policies are compatible with Spanish occupational risk prevention requirements and that local managers understand the obligations applicable to them.
This is particularly important where the organisation’s central management is located in another country and preventive decisions are made through an international structure.
The existence of a global corporate safety standard does not eliminate liability that may arise from failure to comply with the preventive obligations applicable in Spain.
Workplace Accident Prevention as Part of Employment Compliance
Workplace accident management should not begin when an accident occurs.
The best legal protection for a company is to have a coherent, up-to-date and properly implemented prevention system in place beforehand.
This includes risk assessments, preventive planning, training, information, coordination of business activities, emergency procedures and appropriate mechanisms for investigating incidents and accidents.
Prevention should also form part of a broader employment compliance and ethical conduct strategy, particularly where companies have complex structures, multiple workplaces or activities carried out through contractors and subcontractors.
The Role of Human Resources and Management
Occupational risk prevention is not solely the responsibility of the prevention service.
Management and Human Resources also play an important role in the effective implementation of preventive measures, particularly where decisions concerning work organisation, recruitment, training, changes in duties or team structures may affect employees’ health and safety.
Coordination between management, Human Resources, operational managers and prevention services allows risks to be identified earlier and enables the company to respond more quickly when an incident occurs.
Where an accident has serious consequences, early legal advice can also help preserve documentation, coordinate the response to Labour Inspectorate proceedings and determine the potential areas of liability.
What Should a Company Do After a Workplace Accident?
The response following an accident should combine immediate assistance to the affected employee with the preventive and legal management of the incident.
First, the company should ensure appropriate medical assistance and the safety of the workplace.
It should then preserve relevant evidence and conduct a sufficiently thorough internal investigation.
The company must also determine which reporting and notification obligations apply to the particular accident. Spanish legislation establishes specific reporting requirements for certain serious, very serious and fatal accidents and other legally defined circumstances.
Once the investigation has been completed, the company should assess whether its findings require the risk assessment or preventive planning to be reviewed.
Finally, all documentation relating to the accident, the measures adopted and the relevant notifications should be properly retained.
This record may prove decisive if the Labour Inspectorate subsequently investigates the incident or legal proceedings are initiated.
Effective Prevention Is Also a Corporate Defence Strategy
A workplace accident cannot be considered exclusively from a financial or legal perspective.
The priority must always be to protect employees’ health and safety and prevent the accident from happening again.
However, effective preventive management also has an important business dimension: it can reduce legal contingencies, improve work organisation and demonstrate, where necessary, that the company has complied with its obligations.
Preventive documentation is particularly important in this context.
Risk assessments, training records, evidence of the provision of personal protective equipment, working instructions, coordination with contractors, accident investigations and corrective measures may all form part of the evidence relevant to determining liability following an accident.
At Suárez de Vivero, we advise national and international companies on occupational risk prevention in Spain, including risk assessments, preventive planning, coordination of business activities, workplace accidents, internal investigations, Labour Inspectorate proceedings and administrative or judicial proceedings.
Where an accident results in a dispute or judicial proceedings, our team also advises on employment litigation in Spain, including claims relating to occupational health and safety.
Frequently Asked Questions About Workplace Accidents and Employer Liability
Does a workplace accident always mean that the company is liable?
Does a workplace accident always mean that the company is liable?
No. The occurrence of an accident does not automatically establish employer liability. It is necessary to determine whether the company breached its preventive obligations and whether there is a connection between that breach and the harm suffered. In proceedings concerning liability arising from workplace accidents, Article 96.2 of the Labour Courts Act establishes specific rules concerning the burden of proving the preventive measures adopted.
What liabilities can a company face following a workplace accident?
Depending on the circumstances, there may be administrative liability, a Social Security benefit surcharge, civil liability and criminal liability. These forms of liability may coexist where the relevant requirements for each are satisfied.
What is the Social Security benefit surcharge following a workplace accident?
It is an increase of between 30% and 50% in certain benefits arising from a workplace accident or occupational disease where the requirements established in Article 164 of the General Social Security Law are met. The surcharge is imposed directly on the responsible employer and cannot be insured.
Can the Social Security benefit surcharge be insured?
No. Article 164.2 of the General Social Security Law establishes that the employer responsible must pay the surcharge directly and that it cannot be covered by insurance.
Can directors or managers face criminal liability following a workplace accident?
Yes, in certain circumstances. Articles 316 to 318 of the Criminal Code establish potential liability for persons who, while legally responsible and having decision-making or supervisory powers, fail to comply with preventive obligations and create a serious danger to employees’ life, health or physical integrity.
What should a company do immediately after a workplace accident?
The company should prioritise medical assistance to the affected employee and ensure the safety of other employees. It should then preserve relevant evidence, investigate the accident, comply with applicable reporting obligations and assess whether the risk assessment and preventive measures need to be reviewed.
Is a workplace accident investigation mandatory?
Occupational risk prevention legislation establishes investigation obligations in certain circumstances. In particular, the LISOS classifies failure to investigate certain accidents or damage to health as a serious offence where the statutory requirements are met. From a preventive perspective, an investigation is also essential to identify the causes of the accident and prevent recurrence.
What happens if the accident occurs at a subcontracted company?
The answer depends on the contractual structure and the obligations applicable to each company. Where several companies operate at the same workplace, the coordination obligations established by Article 24 of the Law on Occupational Risk Prevention and any specific liabilities arising under applicable legislation must be considered.
Does employee negligence eliminate the company’s liability?
Not necessarily. Spanish occupational risk prevention legislation and the Labour Courts Act distinguish between professional negligence arising from normal familiarity with the job and reckless negligence. The former does not, by itself, eliminate employer liability, while the latter may be relevant as an excluding or mitigating factor where the applicable requirements are met.
