Employer’s duty of protection

What is the employer’s duty of protection?

Law 31/1995 establishes the preventive system based on a legal relationship: workers have the right to effective protection regarding occupational safety and health, and employers have the corresponding duty to guarantee it. This duty is general in nature and is fulfilled through ongoing action: employers must implement continuous preventive measures, improve existing levels of protection, and adapt these measures to changes in circumstances affecting the performance of work (Article 14.2). Simply complying with a list of requirements once is insufficient; prevention must be integrated into management practices and kept actively engaged.

The duty lies with the employer as the holder of the employment relationship and the productive organization, and cannot be transferred to third parties. Article 14.4 stipulates that the obligations of workers, the assignment of tasks to in-house staff, or the contracting of an external prevention service complement the employer’s actions, without exempting them from fulfilling their duty. Nor can the cost fall on the workers: health and safety measures shall in no case entail an economic burden for them (Article 14.5).

The content of this duty is detailed in Articles 15 to 29 of the Law: principles of preventive action, prevention plan, risk assessment and planning, work and protective equipment, information, consultation and participation, training, emergencies, serious and imminent risk, health surveillance, documentation, coordination of business activities, protection of particularly vulnerable workers , maternity, minors , and temporary workers. At the international level, Article 16 of ILO Convention 155 establishes the employer’s obligation to ensure that workplaces, machinery, equipment, and operations are safe and do not pose a risk to health, to the extent that this is reasonable and practicable.

Content and scope

• General and dynamic in nature. It covers all aspects related to work and requires constant adaptation to changes in equipment, processes, organization, and people.
• Hierarchy of principles. This is achieved by applying Article 15: avoid risks, assess those that cannot be avoided, combat them at their source, adapt the work to the person, take into account the evolution of technology, replace what is dangerous, plan prevention, prioritize collective protection, and instruct workers.
• Integration into management. Prevention must be integrated into the company’s general management system, in all its activities and hierarchical levels, through the prevention plan (article 16.1).
• Foresight of negligence. The employer must anticipate distractions or non-reckless negligence that the worker may commit (article 15.4), which extends the scope of the duty beyond diligent conduct.
• Unavailability. It is not transferred to the workers or the prevention services, and it does not allow waiver or agreement to the contrary.
• Extension to third parties. It applies to workers of concurrent companies and temporary employment agencies under the terms of articles 24 and 28.

Responsibilities for non-compliance

• Administrative. Infringements in matters of prevention are classified and sanctioned in accordance with the Law on Infringements and Sanctions in the Social Order (Royal Legislative Decree 5/2000), with sanctions graduated according to severity, in addition to possible work stoppages.
• Surcharge on benefits. When an accident or occupational disease occurs due to a lack of safety measures, Social Security benefits are increased by between 30 and 50 percent at the employer’s expense (Article 164 of the General Social Security Law).
• Civil. Compensation for damages caused by breach of duty, enforceable before the social jurisdiction.
• Criminal. Articles 316 to 318 of the Criminal Code punish those who, being legally obligated, do not provide the necessary means for workers to carry out their activity with adequate safety and hygiene measures, seriously endangering their life, health or physical integrity.
• Compatibility. Administrative responsibilities are compatible with compensation and the surcharge on benefits, without prejudice to the preference of the criminal order (Article 42 of Law 31/1995).

Organizational application: how to fulfill the duty of protection

1. Approve a prevention plan that integrates prevention into the company’s structure, responsibilities, processes, and resources, with visible commitment from management.
2. Define the appropriate preventive organization method and ensure that the agreement with an external prevention service does not replace the company’s involvement.
3. Assess the risks of all positions, plan the measures with responsible parties, deadlines and resources, and review the assessment in the event of changes, health damage or monitoring results.
4. Ensure information, training, consultation and participation of workers, with a record of compliance.
5. Organize health surveillance, emergencies, coordination with participating companies and the protection of particularly vulnerable groups.
6. Assign preventive functions to managers and area managers, integrated into their performance, and supervise their compliance.
7. Document all actions and periodically audit the system to verify that the duty is fulfilled effectively and not just formally.

Preventive management software allows you to keep the system up-to-date, assign responsibilities to each level of the organization, control deadlines and evidence, and demonstrate to the Inspectorate or the courts that the preventive action has been permanent and adapted to changes.

Limits and common mistakes

1. Consider that hiring an external prevention service fulfills the duty of protection in itself.
2. Treating prevention as a documentary activity and not as an action integrated into daily management.
3. Do not adapt the measures in response to changes in equipment, processes, organization or staff, or after accidents or health surveillance results.
4. To trust that the obligations of the workers compensate for the lack of measures by the employer.
5. Transferring protection costs to workers, for example in protective equipment or medical examinations.
6. Omitting coordination with contractors and competing companies, on which the duty also extends.

The exact scope of the duty in each case is determined by the applicable regulations and case law; this sheet is for informational purposes.

Regulatory and reference framework

• Law 31/1995, articles 14 to 29 and 42. Duty of protection, specific obligations of the employer and responsibilities for non-compliance.
• Directive 89/391/EEC, Articles 5 and 6. General obligation of the employer to ensure safety and health in all aspects related to work.
• ILO Convention 155, Article 16. Employer obligations at the enterprise level.
• Royal Legislative Decree 5/2000 (LISOS) . Infringements and penalties in matters of occupational risk prevention.
• Organic Law 10/1995, of the Penal Code, articles 316 to 318. Crimes against the safety and health of workers.
• Royal Legislative Decree 8/2015, General Social Security Law, Article 164. Surcharge on benefits for lack of prevention measures.

Royal Decree 39/1997 develops the integration of prevention and organizational modalities; Article 19 of the Workers’ Statute recognizes the right to effective protection in matters of safety and health.