Contents
Who is responsible for the state of health and safety at the workplace?Need help related to this topic?
ul. Przemysłowa 10
40-020 Katowice
PL9542792700
The issue of responsibility for occupational safety and health (OSH) in the workplace is complex and multifaceted. This article takes a closer look at how the Labor Code distributes responsibility between employers and health and safety professionals.
Who is at fault for an accident at the workplace? According to the Labor Code, it is the employer's responsibility to ensure safe and hygienic working conditions for employees. In this case, what is the responsibility of the behaviorist? Despite appearances, the answer to this question is not clear-cut.
To get the answer to this question, you need to look at Article 207 of the Labor Code. According to this provision, responsibility for the state of occupational health and safety at the company lies with the employer. Employees who perform health and safety duties, as well as specialists hired for this purpose from outside the workplace, do not affect the employer's responsibility.
Health and safety duties are also mentioned in Article 15 of the Labor Code, according to which the employer should provide employees with safe and hygienic working conditions. Importantly, under Article 304 of the Labor Code, the employer should also ensure health and safety for people who are not employed under an employment contract, such as:
It is worth referring here to Article 23711 Health and Safety Service of the Labor Code. According to this article, an employer employing more than 100 people should establish a health and safety service to perform advisory and control functions in the field of occupational health and safety in the company. On the other hand, an employer with fewer than 100 employees may delegate this duty to a company employee who has been hired for other tasks. In small companies, employing up to 10 or 50 people (in some cases), an employer with the appropriate qualifications can handle health and safety issues himself. In the absence of suitably qualified employees, the employer may outsource health and safety duties to an outside specialist.
An employee of the occupational safety and health service, or an employee to whom occupational safety and health tasks are assigned, may not suffer negative consequences for the duties assigned to him (cf. Section 3, Article 23711 occupational safety and health service). However, the responsibility of a behaviorist employed within the company's structure in terms of labor law is the same as that of other employees. According to Article 108 of the Labor Code's penalties for failure to comply with occupational health and safety regulations, the employer may punish a behapist with a warning, reprimand or fine.
According to Article 283 of the Labor Code's catalog of occupational health and safety offenses, a person responsible for the state of occupational health and safety (i.e., the employer) and a person in charge of other employees (e.g., a director, manager, foreman) who fails to comply with occupational health and safety regulations or rules is subject to a fine of between PLN 1,000 and PLN 30,000. Thus, the liability of employees in the occupational health and safety service, employees hired for other work or a specialist from outside the plant does not apply here, unless they perform a managerial function.
The Labor Code is clear - it is the employer who is responsible for the state of health and safety on the company's premises. However, the responsibility of the behapist under criminal law is a completely different matter. Here it is necessary to cite Article 220 of the Criminal Code. According to this provision, a person in charge of occupational health and safety who, as a result of failure to fulfill his duties, exposes an employee to loss of health or life, is liable to imprisonment for up to three years. If the offense is committed unintentionally, then the offender is subject to a fine, restriction of freedom or imprisonment for up to one year. However, the perpetrator may remove the potential danger on his own initiative, in which case he is not subject to punishment.
The question remains, however, whether a behapist can become a perpetrator within the meaning of Article 220 of the Criminal Code? As it turns out, the legal liability of a behapist can reach much further than the Labor Code. As evidence, one can cite the position of the Supreme Court (ref. IV KK 516/19), according to which the person responsible for occupational health and safety at a plant is also the person who has the authority and duties to control occupational health and safety at a given plant (and not just the employer, as the Labor Code implies).
The behapist's liability may arise specifically from failure to inspect the state of health and safety at the plant or to conduct the inspection in an erroneous manner. Exemption from criminal liability in the case of endangering the health or life of an employee can only occur if the behapist has performed his duties correctly.
The aforementioned judgment referred to the Supreme Court's judgment of February 13, 2013 (ref. IV KK 216/12). The ruling stated that the perpetrator of the offense listed in Article 220 of the Criminal Code may be not only the head of the plant or the person in charge of other employees, but also persons who exercise control over occupational health and safety at the plant (including persons outside the organizational structure of the workplace). This view is in line with the commentary to the Penal Code (Commentary to Article 220 of the Penal Code in Penal Code. Particular. Volume II. Part II, ed. by A Zoll, Warsaw 2017), which was also referred to in the ruling of the Supreme Court IV KK 516/19.
According to the Labor Code, a behapist is not responsible for the state of health and safety at the workplace. However, if this person does not comply with health and safety regulations and is an employee of the company, then he is subject to the same punishment as other employees. In this situation, the employer may punish the behapist with a warning, reprimand or financial penalty. However, the behapist's legal liability (whether an employee of the company or an outside specialist) can arise under Article 220 of the Criminal Code. If an employee of the plant is directly exposed to loss of health or life, then the behapist may be subject to a fine, restriction of liberty or imprisonment. However, a behapist can avoid criminal liability if he performs his duties conscientiously and in accordance with the arts.