Compliance In Occupational Safety And Health (O.S.H)
The requirement of criminal liability for companies and prevention technicians has become one of the main concerns for employers, because any serious work accident can be considered a crime, with sentences ranging between 6 months and 4 years of prison.
Here, in ERGASIA, we are experts in developing OHS in a manner that protects the company in the event of a lawsuit following a workplace accident. Risk prevention should not only prevent accidents (it still being the first priority, of course). It must also provide the peace of mind that, in the case of a fortuitous accident, the company will be able to demonstrate the correct application of risk prevention, and thus avoid being held responsible for criminal matters, which is very worrisome.
¿WHAT IS COMPLIANCE?
Compliance, in the broadest sense of the term, refers to regulatory compliance through the management strategies and corporate procedures that could prevent or minimize the risks associated with failure to comply with different rules, whether internal and self-imposed, or external, that may affect organizations in developing their business. This is necessary when breaches can have serious consequences for the company and its managers, such as:
Administrative liability requirements, and imposition of heavy sanctions.
Declaration of nullity or inadmissibility of certain business decisions in the workplace.
Requirement of criminal liability, including with the imposition of prison sentences.
Compliance has been developed especially in Spain as a result of the reform of the Penal Code of 2010, which introduced in our legal system the criminal liability of legal persons. This has greatly expanded the base of affected people, since the partners of a company can be harmed if the sentence falls on the company, and not only on some of its managers, as physical persons.
It should be kept in mind that one of the crimes that involves more criminal convictions of employers (among others) is precisely the lack of protective measures, after an accident at work.
But there are serious difficulties to achieve a correct protection of the company and the actors involved in the prevention of occupational risks (businessman, managers, prevention technicians, managers, etc). This is due to the fact that compliance has basically originated in the financial sector, to protect everyone from money laundering, embezzlement, etc., and this has meant that the experts in the implementation of compliance management systems do not know in depth areas such as risk prevention. But on the other hand, the prevention technicians, who are responsible for advising the employer in this area, do not have in-depth knowledge about the criteria that will be critical in the criminal procedure, and it may be the case that even when doing a very good job in terms of improving the risk prevention of the company, if an accident happens, this action is not enough for the defence in criminal proceedings. Do not forget that there is no "criminal court for risk prevention": any case will begin due process in a criminal investigation court, where the usual charges are robbery, assault, etc., and the crime for the work accident will be just another case. It is therefore essential that the activities in risk prevention within the company also take into account these criminal criteria, for a correct defence in court.
In this order of things, ERGASIA SEGURETAT is one of the pioneering entities in this area, approaching criminalists and prevention technicians, that is, translating the criteria of the criminalists so that the preventive activities that are carried out and registered by prevention technicians take these criteria into account. This is always done from the point of view of the prevention technician (and the employer), therefore, the activity we develop will be an ideal complement for the criminalist. We are not lawyers, we are prevention technicians, and it is thanks to our long experience of working together with criminal lawyers in cases arising from work accidents, that we have developed this advisory service.