In 2021, over 68,000 were reported accidents at work, of which almost 600 people were affected by severe or fatal accidents, according to the Central Statistical Office (GUS) data. The number of long-term serious accidents at work shows a persistent downward trend. And in 2021, they accounted for approx. 0.5 percent. of all accidents, which meant a decrease of 0.1 pp. compared to 2020.
Such events, however, always have a negative impact on the company’s image, and also generate additional costs caused, inter alia, by the necessity to suspend work due to absenteeism, recruitment of a new person, putting them into work, but also damage to property, machinery and equipment.
The accident is the responsibility of the employer
An accident at work, regardless of its type, is also associated with numerous obligations of the employer. Pursuant to Art. 234 § 1 of the Act of June 26, 1974, the Labour Code, in the event of an accident at work, the employer is obliged to take measures to eliminate or reduce the risk, provide first aid, determine the circumstances and causes of the accident and apply appropriate measures to prevent similar accidents in the future.
“However, especially in the case of serious, fatal and collective accidents, additional obligations arise, because according to Art. 234 § 2 of the Labour Code, the employer is obliged to immediately notify the relevant district labour inspector and the public prosecutor of such accidents and of any other that caused the above-mentioned effects. In such a situation, the employer must take into account the fact that it will also involve a possible control in the company, carried out by these authorities”, says Joanna Misiun, OHS specialist at W&W Consulting.
“Therefore, determining whether, in the light of the applicable provisions, it is a serious accident or an accident causing temporary inability to work is important not only for determining the extent of the consequences of the event, but also in relation to the provisions contained in the quoted article”, she adds.
A serious accident at work, as defined in Art. 3 sec. 5 of the Act of 30 October 2002 on social insurance against accidents at work and occupational diseases, is an accident resulting in serious bodily harm in the form of loss of sight, hearing, speech, reproductive capacity or other bodily injury or health disturbance, violating the basic functions of the body, as well as an incurable or life-threatening disease, permanent mental illness, total or partial inability to work in the profession, or permanent, significant disfigurement or distortion of the body.
And the problem is that – as Joanna Misiun notices – this definition does not clearly follow when we are dealing with a serious accident. “Therefore, the initial qualification often causes a lot of difficulties and it happens that the employer is not able to independently determine whether an accident suffered by his employee should be classified as serious or not. Of course, medical documentation and its correct interpretation will be helpful here. In this case, the employer may, on his own, after obtaining the consent of the victim, or through the victim himself or a member of his family, obtain a written opinion from the attending physician on the consequences of the accident”, explains the representative of W&W Consulting.
The provisions do not specify any particular form in which the employer may request a doctor to issue an opinion on the health of the injured person to the extent necessary to establish the circumstances and causes of the accident. There is also no specific uniform form on which the doctor issues such an opinion, but the opinion should contain an unambiguous statement whether the accident is a serious accident or not.
“If it is not possible to obtain a written medical opinion, and the employer has doubts as to the classification of the accident, he should not postpone the deadline for notifying the district labour inspector and the prosecutor about a serious accident at work. Then he may be exposed to the consequences, because the regulations refer to immediate notification, i.e. without undue delay, and therefore as soon as possible” adds Joanna Misiun.
According to the judgement of the Supreme Administrative Court of April 25, 2002, II SA 3189/01, even proven employee’s guilt or the lack of a connection between the accident and work cannot be released from such an obligation. It is also irrelevant that the prosecutor’s actions have already been taken by the prosecutor competent for the place of the accident, as the employer, on his own initiative, should fulfil the obligation to notify the above-mentioned authorities in writing.
Therefore, such notification must be made in any case. Breach of the obligation to notify the relevant authorities about the event or to provide false information is punishable by law and pursuant to Art. 283 § 2 is punishable by a fine in the amount of PLN 1,000 to 30,000. Moreover, deliberate failure to fulfil the obligation by the employer will constitute a crime under Art. 221 of the Act of 06/06/1997.
Compensation liability in Poland
There may also be a situation where an accident at work will not only give rise to criminal liability, but also to compensate, because there may be a relationship between a criminal and a civil matter: the same act will constitute a crime, while having effects in the sphere of civil law. Then, the employer’s liability for damages resulting from an accident at work occurs when the employer has failed to fulfil his obligations related to ensuring safe and hygienic working conditions.
“An employee who has suffered damage in the form of a health impairment as a result of an accident at work may demand a compensation benefit from the employer, if the damage was not fully covered by the benefits provided for in the Accident Act. According to the position of the Supreme Court, it is permissible for an employee to pursue supplementary claims against the employer from the employer in respect of accidents at work, based on the provisions of civil law (Art. 415, 444 and 445 of the Civil Code in connection with Art. 300 of the Labour Code) ” summarises Joanna Misiun.