The Portuguese Labour Code establishes, in Article 281, the employee’s right to perform work under health and safety conditions, imposing on the employer the obligation to ensure such conditions.
It further provides that employees and their family members are entitled to compensation for damages arising from a workplace accident or occupational disease.
What Is a Workplace Accident?
A workplace accident is any accident occurring at the workplace and during working time that directly or indirectly causes bodily injury, functional impairment or illness resulting in a reduction of the employee’s capacity to work or earn, or death.
Employer Liability in the Event of a Workplace Accident
Under Law No. 98/2009, which governs the Compensation Regime for Workplace Accidents and Occupational Diseases, the employer is responsible for compensating damages arising from a workplace accident suffered by an employee in its service.
Employers are also required to transfer such liability to insurance companies legally authorised to provide workplace accident insurance.
Breach of Occupational Health and Safety Rules
In the context of workplace accidents, compliance with occupational health and safety rules is of particular importance.
Indeed, whenever the accident is attributable to the employer, its representative, an entity engaged by the employer, or the user undertaking, or results from their failure to comply with occupational health and safety rules, individual or joint liability for compensation shall extend to the entirety of the losses suffered by the employee and his or her family members, whether pecuniary or non-pecuniary, in accordance with the general principles of law.
Accordingly, a breach of occupational health and safety rules may lead to an aggravation of the employer’s liability or constitute grounds for releasing the insurer from liability, without prejudice to the interaction with the workplace accident insurance regime and the legally established mechanisms.
The law also expressly provides that the civil liability established therein shall not prejudice any criminal liability that those responsible may have incurred, thereby highlighting the possibility of concurrent civil and criminal liability.
Criminal Liability of the Employer for Breach of Safety Rules
The consequences of failing to comply with occupational health and safety rules are not limited to civil and financial liability.
The Portuguese Criminal Code provides for and punishes the conduct of any person who, in breach of legal or regulatory provisions, exposes an employee to a danger to life or to a danger of serious injury to physical integrity or health, with a penalty of imprisonment from one to five years, unless a more severe penalty is applicable under another legal provision.
Offence of Breach of Safety Rules
The objective element of this offence therefore consists in creating a situation of concrete danger to the life, physical integrity or health of the employee through the breach of duties arising from legal or regulatory provisions. This offence may be committed either by act or by omission.
Who May Incur Criminal Liability?
In the offence of breach of safety rules, the perpetrator is the person who holds a position of authority over the employee within the scope of the employee’s professional activity and upon whom rests the obligation to ensure safe working conditions.
Does the Employee’s Conduct Exclude the Employer’s Liability?
It should also be emphasised that the conduct of the injured employee, even where it contributes to the occurrence of the harmful event, does not exclude the employer’s relevant omission, particularly where the employer may be held responsible for a breach of its duty of care by failing to provide the employee with the necessary and appropriate means to prevent the danger.
The occurrence of a workplace accident may trigger significant consequences for the employer, both in terms of civil liability and criminal liability. Strict compliance with occupational health and safety obligations constitutes not only a legal requirement but also an essential instrument for protecting employees and mitigating legal risk for companies.
For more information or specialized assistance, click here to schedule a meeting with one of our professionals.
The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.