Agnieszka Lisiecka: Employees should be more aware of work safety | In Principle

An interview with Agnieszka Lisiecka, a partner at Wardyński & Partners and head of the Employment Law Practice, about the potential consequences of a work-related accident for the employer

Litigation Portal: An accident happens at the workplace. What should the employer do?

Agnieszka Lisiecka: Under Polish law, an employer must respond immediately when it learns of an accident. First it should take measures to limit or eliminate the threat, if it still exists, and provide first aid to the injured persons. If the accident is fatal, serious, or involves multiple persons, the employer must promptly notify the regional labour inspector and the prosecutor’s office, who will conduct their own investigation.

The employer should also secure the site of the event in order to prevent unauthorised persons from obtaining access to the site or disturbing the site. The employer should also appoint a post-accident team. The task of the post-accident team will be to determine the circumstances and causes of the accident, classify the event as an on-the-job accident (or not), and prepare a post-accident protocol.

Are there particularly serious consequences that may flow from failure to fulfil any of these obligations?

All of these obligations have a defined importance. Failure to perform them may give rise to various consequences involving the employer’s liability, including civil liability and criminal liability for a petty offence or even a felony.

Failure to notify the labour inspector or prosecutor of a serious, fatal or group accident on the job is a petty offence punishable by a fine of PLN 1,000–30,000. Failure to appoint a post-accident team or prepare a post-accident protocol will effectively deprive the employee of legal grounds to receive accident-related social insurance benefits. Consequently, the employee will be entitled to file a claim in the labour court for a judgment declaring that the event was an on-the-job accident.

In practice, however, when an accident occurs at the workplace the main question that will arise is the state of occupational health and safety compliance at the establishment. Practically any irregularity or violation by the employer with respect to health and safety regulations that results in injury may lead to liability in damages to the employee and also liability for the petty offences defined in Labour Code Art. 283, punishable by the fine I mentioned before.

Additionally, depending on the circumstances of the case, the employer may face more severe criminal liability. This will involve, for example, any case in which failure to comply with health and safety regulations results in death or serious injury to health, as well as less tragic cases where failure to comply with such obligations only exposes an employee to an immediate danger of loss of life or serious injury to health. Significantly, offences in such cases are punishable by imprisonment, even up to 12 years. Punishment is imposed on the individuals responsible for the condition of occupational health and safety at the workplace—in practice, members of the management authority or persons supervising employees.

When is an accident deemed to be work-related?

The Act on Social Insurance for Work-Related Accidents and Professional Illnesses defines an on-the-job accident as a sudden event due to an external cause, resulting in injury or death, which occurred in connection with work.

The act defines the connection with work very broadly. It may be a connection in function, time or place. A work-related accident is an event that occurs during or in connection with an employee’s carrying out his or her ordinary duties or instructions by superiors, performance of actions for the employer even without instructions, or during the time the employee is at the employer’s disposal, on the way between the employer’s location and the location where an employment-related duty is to be performed. In addition, certain situations are equated to work-related accidents under the act, e.g. an accident during official travel.

The concept of an external cause is also interpreted broadly. It is generally recognised that an external cause is any factor outside the human organism that caused the event to occur. Thus, for example, if an employee due to his or her own carelessness falls in the hallway of an office building and breaks a leg, or if a file falls on the employee and injures his or her head, it is a work-related accident. In such cases, the fall or being struck by the file is an external cause. It is not necessary that the accident be due exclusively to the external cause, but it is sufficient if it was one factor among others causing the accident.

The Supreme Court of Poland has held that the external cause of a work-related accident may even be normal performance of work by an employee, if at the given moment it requires excessive effort in light of the employee’s state of health and in consequence leads to deterioration of the employee’s state of health (including an employee affected by an independent ailment). The most recent cases have found, however, a need to show an extraordinary situation connected with work, the excess nature of the effort, and that the effort significantly hastened or worsened the illness. Thus it has been held by the Supreme Court that a heart attack, for example, is not a work-related accident if the employee suffered the heart attack while performing typical duties, even requiring great effort, so long as they did not involve excessive effort on the employee’s part.

If an accident is found to be work-related, does that necessarily mean that the employer will face civil liability?

No, there is no automatic connection. Classification of an event as a work-related accident means that the employee is entitled to social insurance benefits for work-related accidents, e.g. sick pay, rehabilitation benefits, compensatory pay, one-off compensation, disability benefits or training benefits. In order for the employee to pursue claims beyond those for benefits under social insurance for accidents, it is necessary to meet the conditions for imposing civil liability on the employer. In this respect, the burden of proof is on the employee.

What sort of liability does the employer bear to the employee?

The law provides for two liability regimes: on the basis of fault and on the basis of risk. Liability on the basis of fault is liability for a culpable and unlawful act or omission by the employer resulting in injury—for example, failure to comply with occupational health and safety obligations. Risk-based liability is a stricter regime as it does not depend on fault: as a rule, the mere fact of the occurrence of the injury means a duty to redress it. This liability regime is provided for those conducting an enterprise for their own account, or an establishment, which is powered by natural forces such as steam, gas or electricity—for example, a railway, mine, utility, or manufacturing plant—in light of the increased threat to life and health that may be caused by operating such an enterprise. However, it is irrelevant whether the injury has any direct connection to such natural forces, such as an injury caused by machinery. It is sufficient if the injury occurred in connection with operation of the enterprise as a whole.

Is there any way for the employer to escape such liability?

The employer may avoid liability on the basis of fault if not all of the grounds for such liability are proved at trial—for example, if the employer cannot be held to be at fault because it performed all of its obligations, particularly with respect to occupational health and safety.

In the case of liability on the basis of risk, the employer may avoid liability only if it proves that the injury resulted from force majeure or solely due to the fault of the injured person or a third party for whom the employer is not responsible.

In practice, it is difficult for the employer to make this showing, because accidents caused by force majeure are rare, and besides, an accident typically results from a combination of numerous factors, which effectively makes it impossible to assign fault solely to the employee or a third party. Another difficulty is the very narrow group of persons for whom the employer is not responsible. Another employee is not a responsible third party. A freelancer or contractor will also not be regarded as a responsible third party, because the employer becomes responsible for them when they are included in the operation of the enterprise.

What claims may the employee assert directly against the employer?

The employee’s primary entitlement is to social insurance benefits. However, if the benefits do not fully compensate the employee for the loss, the employee will be entitled to pursue claims against the employee to make up for the difference between the actual loss suffered and the social insurance benefits received.

The employee holds an array of different sorts of claims. First, the employee may seek damages for any costs incurred by the employee as a result of the accident, including costs of treatment (e.g. treatment outside of the public health service, and fees for consulting medical specialists), costs of care for a third party, costs of visits by family members, and costs of retraining for another profession if the employee has become an invalid. The costs must be justified, reasonable, and documented.

Moreover, an injured person who has wholly or partially lost the ability to perform gainful employment, or faces increased needs or reduced prospects for success in the future, may demand an appropriate disability pension. The amount of the pension for loss of the ability to work is calculated on the basis of the earnings the employee would have obtained if he or she had not suffered the accident. Instead of a disability pension, the employee may seek a one-off payment of compensation. This could be the case, for example, if the injured person has become an invalid but awarding him or her one-off compensation may help the person pursue a new profession.

Finally, the employee may seek monetary compensation for loss in the form of physical and mental pain and suffering. In determining the amount of compensation, the court will take into account such factors as whether the detriment to the employee’s health is long-term or permanent, the type and duration of treatment, the need for treatment or rehabilitation in the future, the amount of pain and suffering connected with the treatment, the number of operations and related pain and suffering, whether or not the person is capable of working and living independently (including related pain and suffering), and even the person’s capacity to lead an active existence and pursue his or her interests prior to the accident.

Significantly, compensation received by the employee from the employer, social insurance benefits and insurance proceeds are applied toward satisfaction of the employee’s claims.

If an accident results in an employee’s death, the decedent’s family members will also have certain claims against the employer, e.g. for reimbursement of costs of treatment and funeral costs, a pension for persons for whom the decedent had a legal support obligation or voluntarily provided means of support, and compensation for family members to make up for the significant deterioration in their quality of life due to the employee’s death.

How to protect against on-the-job accidents?

According to figures from Poland’s Central Statistical Office, the most common cause of work-related accidents in Poland in the first half of 2012 was improper behaviour by the employee. For this reason, stress should be placed on increasing the awareness of work safety and safe work practices among employees themselves. All of the efforts by the employer to comply with occupational health and safety requirements will come to naught if the employees themselves ignore the risks occurring in their everyday work. It should be emphasised that apart from the mere fact that employee training is held, the manner in which training is conducted and the methods in which employees are trained are also crucial. Maintaining a culture of safe work may prove to be an effective tool for reducing the number of accidents.

Employers should also insure themselves against civil liability. Policies covering work-related accidents and related claims may cushion the financial blow to the employer in the case of an accident and also enable the employee to obtain swift compensation. It is important for the policy to cover all types of claims that may be pursued against the employer, such as compensation for pain and suffering as well as pension claims, which may be relatively high compared to the other claims pursued by an injured employee.