Workplace Safety Crimes: the Offence Against Workers' Safety (Art. 316 CP)

Whenever a worker is seriously injured or killed at work, alongside the Labour Inspectorate's investigation a criminal case may be opened. The reproach is not aimed at the accident itself, but at a prior question: were the safety measures the law requires actually put in place? That is what the offences against workers' safety under articles 316 to 318 of the Spanish Criminal Code (CP) are about. As criminal lawyers specialising in workplace accidents, we explain what this offence punishes, who is liable and how it is defended.

What Art. 316 CP Punishes

The provision penalises those who, in breach of occupational risk-prevention rules and being under a legal duty, fail to provide the necessary means for workers to carry out their activity with adequate health and safety measures, in such a way as to place their life, health or physical integrity in serious danger. The penalty is imprisonment of six months to three years and a fine of six to twelve months.

The protected legal interest is health and safety at work as a collective interest of those who work for an employer. It is the criminal-law counterpart of the extensive body of occupational risk-prevention (PRL) rules: criminal law steps in where the breach reaches the gravity of placing people's life or integrity in real danger.

An Offence of Danger: No Accident Required

This is the point that best defines the offence. Art. 316 CP is an offence of concrete danger: it is committed by the creation of a serious danger to workers' life or health, without any harmful result needing to occur. There need be no accident, injury or death; it is enough that the breach has generated a serious and real risk.

Hence the Labour Inspectorate can detect the offence on a site before anyone has been hurt: scaffolding without collective protection, a machine without guards or an unshored trench may already, in themselves, be the conduct that constitutes the offence. The danger must be concrete and serious, not a merely formal or documentary breach of the rules.

Intent and Negligence: Arts. 316 and 317 CP

The Code distinguishes two forms depending on the duty-holder's attitude towards the risk:

• Intentional form (art. 316 CP): the safety means are withheld with knowledge of the serious danger this creates. Penalty of imprisonment of six months to three years and a fine of six to twelve months.
• Negligent form (art. 317 CP): the offence is committed through gross negligence —the duty-holder does not want the danger but seriously breaches their duty of care—. It is punished with the penalty reduced by one degree. In practice this is the most frequent form: the employer does not seek the risk, but their gross negligence in prevention causes it.

The boundary between intent (including dolus eventualis) and gross negligence is one of the key battlegrounds of the defence, because it directly determines the penalty.

Who Is Liable: Employer, Officers and Art. 318 CP

The offence can only be committed by someone under a legal duty to provide the safety measures. That duty falls, according to the actual allocation of functions, on:

• The employer in charge of the workplace and the company's directors and managers.
• The prevention officers and the prevention service who omit or defectively design the measures.
• The health and safety coordinators on construction sites and the supervisors or site managers with decision-making power over working conditions.

Where the facts are attributed to a legal entity, art. 318 CP lays down a specific rule: the penalty is imposed on the directors or service managers who were responsible and on those who, being aware of the facts and able to remedy them, failed to take measures. In addition, the court may order the accessory consequences of art. 129 CP. Criminal liability is thus individualised in the natural persons who had the duty and the power to act.

Penalties under Arts. 316 to 318 CP

• Art. 316 CP (intentional): imprisonment of six months to three years and a fine of six to twelve months.
• Art. 317 CP (gross negligence): the penalty reduced by one degree from that of art. 316.
• Art. 318 CP (legal entity): the penalty is transferred to the responsible directors or managers; possible measures under art. 129 CP.
• Concurrence for the result: if there is death or injury, negligent homicide or injury is added, with its own penalties and civil liability.

Lines of Defence

The defence in these proceedings is essentially technical and usually rests on prevention expert evidence. The main lines are:

1. Compliance with PRL rules: proving, with documentation and expert evidence, that the required means were provided, the risks were assessed and the proper training and information were given.
2. Effective delegation of functions: where prevention has been genuinely delegated —with sufficient means, powers and authority— to prevention officers or services, criminal liability may shift to the delegate, the delegating party retaining only a residual duty of selection and supervision.
3. Breaking the chain of causation: showing that the danger or the result did not stem from the alleged breach, but from an extraneous cause or the intervention of a third party.
4. Exclusive fault of the worker: conduct by the worker that is unforeseeable, reckless and entirely outside the instructions received may exclude the duty-holder's liability. By contrast, the worker's ordinary carelessness, which the company has a duty to anticipate, is not enough.
5. Atypicality for lack of serious danger: distinguishing a merely administrative or formal PRL breach from the concrete, serious danger the offence requires.

In this area, the settled case law of the Supreme Court stresses the nature of the offence as one of danger, the requirement of a serious, concrete risk and the individualisation of liability in the person holding the duty of safety, which leaves a margin for defence that should be worked from the outset of the investigation.