Serious and imminent risk

What is a serious and imminent risk?

The legal definition combines two elements that must be present: the severity of the foreseeable harm and the imminence of its occurrence. It is not enough for a risk to be serious if it is not likely to materialize immediately, nor is it enough for it to be immediate if the foreseeable harm is minor. Typical examples include a platform without a guardrail ten meters high with people working on the edge, a deep, unshored trench with workers inside, an explosive atmosphere near an ignition source, or a machine with its guard removed and the operator reaching inside.

The second paragraph of Article 4.4 clarifies an important aspect regarding hygiene risks: imminence refers to exposure, not harm. A leak of a carcinogenic agent or an oxygen-deficient atmosphere constitutes a serious and imminent risk even if the health effects take years to appear or, in the case of asphyxiation, even if no one has yet been affected.

The classification has immediate legal consequences: Article 21 of Law 31/1995 imposes specific obligations on the employer, recognizes the right of workers to interrupt their activity and leave the workplace, and empowers representatives to agree to the stoppage; Article 44 allows the Labor Inspectorate to order the immediate stoppage of work.

Obligations and rights in the face of serious and imminent risk

• Employer. Inform all affected persons as soon as possible about the existence of the risk and the measures taken or to be taken; take the necessary measures and give the necessary instructions so that, in case of serious, imminent and unavoidable danger, they can interrupt their activity and leave the workplace immediately, without being able to demand resumption while the danger persists; and make the necessary arrangements so that whoever cannot contact their superior is in a position to take the necessary measures to avoid the consequences of the danger.
• Workers. Right to interrupt their activity and leave the workplace when they consider that the activity entails a serious and imminent risk to their life or health; they cannot suffer any detriment for this, unless they have acted in bad faith or committed gross negligence.
• Workers’ representatives. When the employer does not adopt or does not allow the adoption of the necessary measures, the legal representatives, by majority vote, or the worker safety representatives, by majority decision, when it is not possible to urgently convene the representative body, may agree to the suspension of the activity of the affected workers, immediately notifying the company and the labor authority, which will cancel or ratify the suspension within twenty-four hours.
• Labor Inspection. It may order the immediate cessation of work or tasks when it verifies non-compliance with prevention regulations that implies a serious and imminent risk, communicating this to the company, which will inform the affected persons and their representatives, and the labor authority.

How it is managed in the company

1. Define in the prevention plan and procedures what is meant by serious and imminent risk in the company’s activity, with specific examples by area.
2. Establish a communication and action procedure: who can stop work, how to notify, how to evacuate the area, and who decides on resumption.
3. To train managers and workers in the identification of these situations and in their right and duty to interrupt the activity.
4. Record each stoppage, its causes and the measures taken, and investigate it as a high-potential incident.
5. Correct the underlying causes before resuming and review the risk assessment and planning when the situation reveals unforeseen deficiencies.
6. Integrate the criteria into work permits, the coordination of contracts and the presence of preventive resources, which have the power to order the interruption.

Organizational application

• Authority to stop. Anyone can interrupt their own activity; managers, prevention resources, and coordinators must have instructions and express support to stop the work of others without prior authorization.
• Communication. Immediate channels (radio, telephone, alarm) and the rule that doubt is resolved by stopping work.
• Resumption. Only after eliminating or controlling the risk, with documented verification by a responsible person.
• Contracts. The coordination of business activities must anticipate how these situations are communicated and managed between competing companies.
• Culture. The effectiveness of the system depends on stopping work for safety reasons being recognized and not penalized.

Limits and common mistakes

1. Treat work stoppages due to serious and imminent risk as insubordination or deduct the time not worked.
2. Wait for management authorization to stop a clearly dangerous activity.
3. Resuming work with provisional measures that do not eliminate the risk.
4. Failure to inform the affected persons or their representatives constitutes a very serious infringement under the LISOS.
5. To confuse any non-compliance with a serious and imminent risk; the rating requires seriousness and imminence and should not be trivialized.
6. Failure to record or investigate work stoppages results in a missed opportunity to correct organizational causes.

The LISOS classifies as a very serious infraction the failure to immediately stop or suspend work carried out without observing the regulations and which, in the opinion of the Inspection, involve a serious and imminent risk, or to resume them without having remedied the causes, as well as actions or omissions that prevent the exercise of the right of workers to stop their activity.

Regulatory framework in Spain

• Law 31/1995, articles 4.4, 21 and 44. Definition , employer obligations, rights of workers and their representatives, and suspension by the Labor Inspectorate.
• Royal Legislative Decree 5/2000, Law on Infringements and Sanctions in the Social Order, article 13.10 . Very serious infringement for not stopping work with serious and imminent risk or resuming it without remedying the causes.
• Law 23/2015, Regulating the System of Labor and Social Security Inspection, Article 22. Measures derived from inspection activity, including the stoppage of work.
• Royal Decree 39/1997, article 22 bis . Powers of the preventive resource to communicate deficiencies and, where appropriate, give instructions for compliance with the measures.

Directive 89/391/EEC, in Articles 8 and 11, establishes the employer’s obligations in cases of serious and immediate danger and the right of workers to leave their posts without prejudice. In Colombia, Decree 1072 of 2015 and Resolution 0312 of 2019 provide for the suspension of activities in the face of imminent risk.