The TSJ of Castilla y León, headquarters of Valladolid, by means of a sentence of January 30, determines the corporate responsibility of the accident suffered by two workers, considering the risk assessment carried out insufficient.
The facts analyzed in this sentence come from the work accident that two workers suffered in a forklift, whose maintenance service was contracted with an authorized company.
The sentence establishes that risk assessment cannot be confused with the Occupational Risk Prevention PlanTherefore, even if the obligation to have a prevention plan has been fulfilled, it does not mean that the obligation to assess the risks, which is different, has been fulfilled. Both the evaluation and the plan are material activities, which must have been carried out effectively with their prescribed content and, in addition, reflected in written documentation, but the mere existence of a document entitled "plan" or "evaluation" does not mean that the evaluation has been fulfilled. corresponding obligation
Among the documentation provided in the appeal, no risk derived from the breakdowns that the forklift may suffer is identified, proposing a preventive measure with respect to it. Neither is there any mention that it has been verified that the forklift has some type of conformity certification or similar instrument provided for in industrial safety legislation.
It is verified that, according to the proven facts, the accident, which caused the death of one worker and seriously injured another, occurred in the first place because when transporting in the forklift a pallet of wooden lids from wine boxes, a part of said covers fell between the forklift platform and a side wall of the shaft. The second part of what happened consists in the fact that the elevator situation tried to be resolved by workers from the company itself, who tried to free, by hitting with a hammer and chisel, the covers trapped between the platform and the wall of the shaft, a task that was carried out without any concealment, for more than half an hour and with great noise produced by the blows, being obviously observed and seen by those who were there. In addition to the criminal sentence, the company's personnel chief himself was aware of what was happening and did not intervene to stop the operation, which is why he was criminally convicted.
The company considers that, although the risk was not properly assessed, it should not have been assessed because:
The forklift had a CE certificate of conformity.
The maintenance operations and repair of breakdowns should not be carried out by company personnel, but by the personnel of the maintenance company contracted for it.
"The risks derived from the work teams must always be subject to evaluation, and cannot be replaced by compliance with the obligation to have the Risk Prevention Plan"
The risks derived from work equipment must always be evaluated. There is no exception expressly provided for due to the fact that there has been a prior certification activity or analysis of the risks derived from the work equipment in stages prior to its commissioning in the company, nor due to the fact that said equipment is subject to to regulatory inspections or controls based on other regulatory systems.
The employer cannot be held responsible for choosing some products over others due to mere “culpa in eligendo” based on the subjective reliability of one or another manufacturer. Once the requirements for the products to be marketed have been met, the elements that will condition the employer's decision are the following:
-It must ensure the adequacy of the chosen product to the specific conditions and characteristics of the work to be carried out.
-You must check what are the risks that will appear or increase as a result of the interaction between the product and the environment in which it will be used.
-You must check the adequacy of the product based on the people who are going to use it.
The guarantee that the employer must give to the workers is not exhausted by checking the CE marking and the declaration of conformity and, even if these formal elements exist, the employer has the obligation to carry out a risk assessment, but it cannot understand the verification of the resistance of materials, especially in those cases in which such verifications require laboratory tests of a destructive nature, since the task of verifying the physical resistance of all the components of the machine is not within the obligations of the employer, but rather That is the sole responsibility of the manufacturer. On the contrary, this examination by the employer who acquires and uses work equipment does include, for example, if there are mobile parts of it that are accessible to the worker and lack fixed safeguards and protections.
Consequently, even though the work equipment is subject to a harmonized regulation that refers to conformity certification systems when it is marketed, The employer is still obliged to carry out a risk assessment and cannot be excused from it, by the mere referral to said CE certification of conformity, at least in the following cases:
-In the case of risks not covered by the certification of conformity.
-In the case of risks that do not derive from the design and characteristics of the equipment subject to the conformity certification, but from other conditions, such as the use that is carried out of it, if it is different from that foreseen by the manufacturer, or derive from the way the equipment is installed in the specific workplace.
-When, despite the existence of a certification of conformity issued by a control body, it can be appreciated with an examination carried out with the due diligence required of a professional dedicated to risk assessment, that there are improperly certified or contrary risk situations. to the requirements of occupational risk prevention regulations.
The company is responsible for the accident since it involved industrial workers, accustomed to industrial and maintenance work, so it is normal that, in the event of an incident due to the fall of company material, they try to solve it, considering that such action was even part of his duty of labor diligence to avoid paralyzing production. Therefore, if one wanted to exclude the possibility that in the event of an incident on a certain machine, the company's workers could take the initiative to solve it with their usual knowledge and criteria, it would have been necessary to establish criteria, action protocols and prohibitions, which are clearly transmitted to the workers allow us to conclude that when they took on the task they were aware that they were disobeying an order or certain instructions.
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