In the construction industry, accidents at work occur relatively frequently, which is primarily due to the nature of the activities performed by blue-collar workers on site and the infrastructure used in the construction process. Participants in the construction process are obliged to ensure that working conditions at the construction site are as safe and hygienic as possible. In terms of technical and organizational requirements, it is necessary to properly develop the boundaries of the construction site (appropriate fencing of the site and its marking), as well as appropriate training of workers, preparation of instructions, plans that will guarantee the efficient execution of construction work, while ensuring the safety and health protection of all workers. If these requirements are not met, employers expose themselves to criminal liability. Assigning responsibility for an accident at a construction site raises a number of practical problems, due to the fact that the employer's obligations to ensure safe and healthy working conditions are divided among a number of entities that have different legal relationships when carrying out a specific construction project. We discuss these issues in detail in this article.
Who and what does the law protect?
On the basis of Article 220 of the Criminal Code (CC), the protected good is the right of employees to safe and hygienic working conditions, which is normalized in Article 66 (1) of the Polish Constitution. The concretization of the constitutional norm under Article 220 of the Criminal Code is the right of an employee to provide work under conditions that guarantee health and safety(1). A collateral protected good is the life and health of the employee (2).
In legal doctrine, the prevailing view remains that the object of protection of Article 220 of the Criminal Code is the rights of persons who are exclusively in an employment relationship (Article 22 § 1 of the Labor Code)(3). The coverage of persons in an employment relationship by Article 220 of the Criminal Code does not mean that persons performing construction work on the basis of a legal relationship other than an employment relationship are not protected by criminal law.
In such cases, the Legislature has provided for liability for the crime of Article 160 of the Criminal Code, against which Article 220 of the Criminal Code is lex specialis(4).
Who is responsible for protecting workers at the construction site? What action is subject to assessment?
The causative act of the offense under Article 220 of the Criminal Code in the performance of construction work is the failure of supervisors at the construction site to fulfill their obligations to observe health and safety rules.
The perpetrator's behavior may consist of failure to perform specific actions (e.g., failure to prepare a safety and health plan, failure to secure scaffolding, failure to fence off the construction site), but also inadequate performance of specific duties (e.g., improper organization of the construction process, incomplete training of employees).
With regard to the performance of construction work, occupational health and safety obligations arise primarily from Section X of the Labor Code, the Construction Law of July 7, 1994, and the provisions of the Decree of the Minister of Infrastructure on occupational health and safety during the performance of construction work of February 6, 2003 (hereinafter: "the Decree").
It is worth noting that in the course of performing construction work, the failure to apply specific legal provisions on health and safety rules, as well as the failure to exercise due diligence required under the circumstances, may be considered as a causative action covered by the disposition of Article 220 of the Penal Code(5).
The effect of the offense under Article 220 of the Penal Code is the direct exposure of an employee to the danger of loss of life or grievous bodily harm, and the legislator has not specified a legal definition of the "directness" of the said danger.
Therefore, it should be assumed that these are all cases in the performance of construction work in which there is a high degree of probability of loss of life or serious injury to health(6).
In the jurisprudence of the common courts, such an immediate danger has been recognized, for example:
- failure to secure a concrete batching plant and allowing a person inadequately trained to work there;
- failure to provide adequate fall protection measures in the form of harnesses and connecting and shock-absorbing subsystems;
- allowing employees to work at height without proper medical examinations;
- Failure to properly mark elevator and ventilation shafts;
- allowing the use of scaffolding that does not comply with the manufacturer's instructions;
- failure to provide workers with instructions specifying the safe way to remove tarps and install skylight elements;
- allowing workers who do not meet the requirements to work on high-voltage equipment to perform construction work;
- failure to provide personal supervision of work on the excavation of the sewer system;
- failure to provide proper supervision of the dismantling work carried out on old technological installations in terms of failure to appoint a construction manager(7).
Causal relationship between the event and exposure to danger, contribution of the employee
When analyzing a specific incident (accident) at a construction site, it is extremely important that the attribution of liability under Article 220 of the Penal Code is only possible if there is a causal link between the failure to comply with health and safety obligations and the result of exposing the employee to danger(8).
Law enforcement authorities, when gathering evidence on a construction site accident, should determine whether the behavior of the person supervising the work at the construction site put the worker in danger of loss of life or grievous bodily harm. This is because the offense under Article 220 § 1 of the Penal Code has a substantive (so-called "effect") nature.
In assessing the above relationship, it is also necessary to take into account the possible contribution of the employee to the danger, especially if the contribution also bore the characteristics of a violation of duties under the rules of health and safety(9).
If, in a given case, there is only a mere violation of OSH duties by a person supervising work at a construction site, which did not cause danger to the life and health of an employee, such an act constitutes a misdemeanor under Article 283 § 1 of the Code of Labor, and if it had the nature of persistent or malicious behavior - a crime under Article 218 § 1 of the Penal Code(10).
As a rule of thumb, any failure by a person in charge of OSH constitutes a violation of an employee's rights under the employment relationship and must be sanctioned accordingly(11).
Persons responsible for OSH in the performance of construction work
The basic regulations regarding the obligation to observe the principles of occupational health and safety are regulated in the Labor Code (Article 207 of the Labor Code et seq.) It follows from the wording of Article 207 of the Labor Code that the entity responsible for the state of occupational health and safety is the employer.
Taking into account the specifics of the construction industry, the Legislator has normalized the detailed duties for ensuring safe and hygienic working conditions at the construction site in the Ordinance.
It is clear from the content of the Ordinance that in the performance of construction work, the responsibility for observing and implementing the principles of occupational safety and health has been transferred from the employer to those directly involved in the entire construction process.
For example:
- the investor is responsible for organizing the construction process, taking into account all the rules of health and safety, appointing a construction manager and developing a safety and health plan with him, as well as to notify the appropriate Labor Inspector of the intention to begin construction work;
- before starting construction work, the contractor is obliged to develop instructions for the safe execution of the work and to familiarize all employees who will perform activities on the site with these instructions.
It is worth bearing in mind that § 4 of the Ordinance indicates that participants in the construction process shall cooperate with each other in the field of occupational safety and health in the process of preparation and implementation of construction.
At the same time, in § 5 of the Ordinance, the direct supervision of occupational health and safety at workplaces in the course of construction work was entrusted to work managers and construction masters.
In practice, the above regulations confirm that the subject of the crime of Article 220 § 1 and § 2 of the Criminal Code can be a number of people who are jointly responsible for ensuring safe and hygienic conditions in the process of preparation and implementation of construction work.
At the same time, the literature emphasizes that the perpetrator of the prohibited act under Article 220 of the Criminal Code may be, in principle, any person who, within the framework of his supervisory and control powers, is authorized to influence in a commanding manner the conditions of health and safety at work(12).
Therefore, there is no doubt that when analyzing the elements of the crime of Article 220 § 1 and § 2 of the Penal Code, the regulation of Article 2 of the Penal Code should be taken into account in each case, according to which only the person on whom a specific legal duty to prevent the effect was imposed is liable for the crime of effect committed by omission(13) .
Thus, from the subjective side, criminal sanction is imposed on those directly responsible for health and safety in the construction process, who have the relevant authority to shape regulations on these issues, as well as the ability to make authoritative decisions that minimize the risk of accidents.
Often, however, the assignment of responsibility for an accident at a construction site is problematic due to the fact that the division of responsibilities for ensuring safe and healthy working conditions is divided among a number of entities that have different legal relationships when carrying out a specific construction project.
In the judgment of the Supreme Court of February 19, 2012, ref: IV KK 216/12, it was indicated that, quote, "The subject of the offense under Article 220 § 1 of the CC is only the person responsible for observing occupational health and safety, so it can be not only the manager of the workplace, but also any other person in charge of employees (Article 212 of the Civil Code), and even persons performing control and supervisory functions in the field of occupational health and safety, even if they are not in the organizational structure of the workplace. The important thing here is that each responsible person is responsible for his own behavior, regardless of the responsibility of others, since "the criminal law is alien to the construction of bearing responsibility for someone".
To summarize: the condition for incurring criminal liability for the offense of Article 220 of the Criminal Code in the performance of construction work is the explicit assignment of health and safety duties to specific persons. Thus, it basically covers all persons who are involved in a specific construction process from the side of ensuring occupational health and safety.
Endangering the life and health of workers - intentional and unintentional intent
It is also worth mentioning that the offense under Article 220 of the Criminal Code can be committed both intentionally with direct and possible intent (§ 1) and unintentionally (§ 2).
The unintentional realization of the elements occurs when the perpetrator, while being aware of the failure to comply with his health and safety obligations, does not foresee that this will be combined with the introduction of direct danger to the life or health of a specific employee(14).
Criminal liability of those who supervise work in the performance of construction works is strict, sanctioning both intentional and unintentional behavior.
An important aspect of criminal liability under Article 220(2) of the Penal Code is whether the accident results in unintentional causing of death or grievous bodily harm. In such a situation, it will be necessary to apply the so-called cumulative qualification with the provisions defining criminal acts against life and health (Articles 155 of the Penal Code, 156 § 2 of the Penal Code and 157 § 3 of the Penal Code)(15).
If the effect of failure to comply with the responsibility for health and safety at work in the form of death or grievous bodily harm is covered by intentionality, in such cases the perpetrator's behavior is qualified only under Article 148 of the Criminal Code or Article 156 § 1 of the Criminal Code(16).
Exclusion of criminality
The provision of Article 220(3) of the Penal Code allows the application of the institution of active regret, i.e. the waiver of punishability of the criminal act. The condition for the application of this institution is that the perpetrator voluntarily takes actions that abrogate the threatening danger. The abrogation of the danger must be effective(17).
The doctrine points out that the motivation of the perpetrator is irrelevant. The evasion of the threatening danger may involve both fear of incurring criminal liability and external pressure from other associates. It is worth noting that it is also irrelevant whether the perpetrator evaded the imminent danger personally, or whether he did so by using other collaborators(18).
However, the exclusion of punishability under Article 220(3) of the Penal Code will not occur if the effect of death or serious injury to the employee's health has been realized, even if the perpetrator made unsuccessful efforts to avert it(19).
Accident prevention activities
There is no doubt that performing construction work in accordance with health and safety rules minimizes the risk of accidents. Therefore, it is extremely important that the start of work on a specific construction project be preceded by proper and reliable preparation of protective measures and training of employees performing construction work.
Opportunities to minimize the number of accidents during construction work can be prevented by the following actions:
- detailed development of safety and health instructions and procedures, as well as a safety and health plan;
- Adequate protection of areas associated with work at height;
- proper marking and lighting of hazardous areas;
- securing the construction site against access by third parties;
- Reliable training of workers performing construction work;
- providing workers with appropriate protective clothing;
- regular inspection of equipment and machinery;
- regular monitoring of the progress of the work and compliance with safety standards;
- detailed organization of the movement of machinery and vehicles on the construction site;
- monitoring weather conditions and prudently deciding whether to undertake work in extreme conditions(20).
In conclusion, every employer involved in the construction process should be aware of the risks involved in performing construction work. At the same time, in order to minimize the risk of accidents and hold employers criminally liable for their occurrence, a set of internal health and safety procedures should always be prepared in accordance with the guidelines set by the law, and periodic training for employees should be provided.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
