Infringements and penalties in occupational risk prevention

What are violations in occupational risk prevention?

Article 5.2 of the LISOS (Law on Infringements and Sanctions in the Social Order) defines labor infringements in the area of ​​occupational risk prevention as the actions or omissions of responsible parties that fail to comply with the legal and regulatory provisions and normative clauses of collective bargaining agreements in this area, as defined and penalized in the law itself. The responsible parties are primarily the employer, but also external prevention services, auditing and training entities, project developers and owners, self-employed workers, and companies that share a workplace.

Administrative liability is compatible with other liabilities: civil liability for damages, criminal liability when the offenses described in Articles 316 and 317 of the Criminal Code are present, and the surcharge on Social Security benefits for lack of safety measures. Law 31/1995 establishes this in its Article 42, while Article 42.3 of the LISOS (Law on Infringements and Sanctions in the Social Order) makes the main contractor, along with the contractors and subcontractors of its own activity, jointly and severally liable for compliance during the contract period with preventive obligations regarding the workers they employ at their workplaces, provided that the infringement occurred at the main contractor’s workplace.

The authority to monitor and propose sanctions belongs to the Labor and Social Security Inspectorate , in accordance with Law 23/2015, which may also require the correction of deficiencies and order the cessation of work in case of serious and imminent risk.

Types of infractions and amounts

• Minor infringements (article 11). Formal or documentary non-compliance of little consequence, such as lack of cleanliness without risk to integrity or failure to report minor accidents within the established timeframe.
• Serious infringements (Article 12). Among others, failure to carry out the risk assessment or its updates, failure to carry out planning, failure to comply with health surveillance, failure to provide training and information, failure to register or file documentation, failure to comply with coordination obligations, failure to designate preventive resources or exceeding exposure limits without serious and imminent risk.
• Very serious infringements (Article 13). Failure to observe specific rules for the protection of maternity and minors, failure to stop work in the face of serious and imminent risk, breach of the duty of confidentiality of health data, exceeding exposure limits with serious and imminent risk, or carrying out prevention service or auditing activities without accreditation.
• Amounts (Article 40.2). Fines are graduated into minimum, medium, and maximum levels within each category; the current text sets ranges from hundreds of euros for minor offenses to figures exceeding eight hundred thousand euros for very serious offenses at the maximum level. The specific amount should be consulted in the consolidated text, as it has been updated several times.
• Graduation criteria (article 39.3). Hazardousness of the activities, permanent or temporary nature of the risks, severity of the damage caused or that could have been caused, number of workers affected, measures adopted by the employer, failure to comply with prior warnings and general conduct in preventive matters.

Other consequences of non-compliance

• Additional sanctions. Suspension or closure of the workplace in very serious infractions and limitations on contracting with the Public Administration.
• Surcharge on benefits. Increase of 30 to 50 percent of Social Security benefits derived from accident or occupational disease when there is a lack of safety measures, borne exclusively by the employer.
• Criminal liability. Articles 316 and 317 of the Penal Code punish those who, being obliged, 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 integrity.
• Civil liability. Compensation for damages suffered, compatible with benefits and surcharge.
• Publication of sanctions. Once final, sanctions for very serious infringements are made public in accordance with article 40.2 of the LISOS.

Organizational application: how to reduce sanction exposure

1. Keep the risk assessment and planning up to date, with evidence of implementation, as its absence is the most common serious infraction.
2. Provide information and training for each person and position, and deliver protective equipment.
3. To comply with the obligations of coordinating business activities and the presence of preventive resources.
4. Respond to the requirements of the Labor Inspection within the established timeframe and document the correction.
5. Establish a procedure for serious and imminent risk that guarantees shutdown and communication.
6. Review the specific obligations of protected groups: maternity, minors, especially vulnerable and temporary workers.
7. Integrate the grading criteria of article 39.3 into the management itself: hazard, number of people exposed, measures adopted and general conduct.

A preventive management system with traceability makes it possible to demonstrate at any time what was done, when and by whom, which is valuable both for preventing the infringement and for proving diligence in a sanctioning procedure.

Limits and common mistakes

1. Consider the administrative sanction as the only consequence, ignoring the surcharge on benefits, civil and criminal liability.
2. Confusing the responsibility of the external prevention service with that of the employer, which is not transferred by the agreement.
3. Assuming that the existence of documentation exempts from liability if the measures have not been applied.
4. Ignorance of joint and several liability in cases of contracts and subcontracts of article 42.3 of the LISOS (Royal Legislative Decree 5/2000).
5. Failure to comply with the corrective measures, which aggravates the rating and the amount.
6. Citing outdated amounts of fines without consulting the current consolidated text.

This information sheet is for informational purposes only; the amounts and rates applicable to each case must be verified in the consolidated text of the LISOS and with legal advice.

Regulatory framework in Spain

• Royal Legislative Decree 5/2000, articles 5, 11 to 13, 39 to 42. Classification of infringements in occupational risk prevention, graduation criteria, amounts and accessory sanctions.
• Law 31/1995, articles 42 to 54. Responsibilities and their compatibility, joint and several liability and the actions of the Inspection.
• Law 23/2015, of July 21, Regulating the System of Labor and Social Security Inspection . Functions, powers and measures of the Labor Inspection.
• Organic Law 10/1995, of the Penal Code, articles 316 and 317. Crimes against workers’ rights due to lack of safety measures.
• Royal Legislative Decree 8/2015, General Social Security Law, article 164. Surcharge on economic benefits for lack of prevention measures.

In Colombia, the sanctioning regime of the SG-SST is compiled in Decree 1072 of 2015 (articles 2.2.4.11.1 and following), with fines graduated by the size of the company and the seriousness of the non-compliance.