Article 316 Spanish Criminal Code: Failure to Provide Workplace Safety Measures

Article 316 of the Spanish Criminal Code punishes those who, in breach of the occupational risk prevention rules and being under a legal obligation to do so, fail to provide the means necessary for workers to carry out their activity with adequate safety and hygiene measures, thereby placing their life, health or physical integrity in serious danger. The offence is complete on the creation of the danger, so no accident need have occurred. It is charged routinely against company directors and site managers after an inspection or an accident in the construction and hospitality sectors of the province of Alicante.

Wording of Article 316 of the Spanish Criminal Code

Elements of the offence

1. A person legally obliged to provide the means of prevention: the employer, the director with operational responsibility, the works manager, and in construction the coordinator and the principal contractor within their respective duties.
2. Breach of a specific occupational risk prevention rule, which must be identified and not inferred from the occurrence of an accident.
3. Failure to provide the necessary means, which the case law reads broadly to include equipment, training, information and supervision, not merely the physical provision of protective gear.
4. Serious danger to life, health or physical integrity, assessed at the time of the conduct. A remote or theoretical risk does not suffice.

Defence strategy

The means were provided. The duty is to provide the means, not to guarantee that they are used at every moment. Where the equipment was on site, the training was delivered and documented, the risk assessment identified the hazard and instructions were issued, the defence establishes compliance from the prevention documentation, the training registers signed by the workers and the records of the external prevention service. A worker’s own decision not to use provided equipment does not, without more, establish the offence.

Identifying the person obliged. Responsibility follows operational function and not job title. In a construction chain the duties of the principal contractor, the subcontractor, the works manager and the safety coordinator are distinct and defined by the applicable regulations. The defence maps the delegation of functions and the contractual documentation, since indictments habitually name the company director without establishing what he was obliged to do personally.

Absence of serious danger. The offence requires serious danger, assessed objectively at the time. Where the task was of short duration, where the height or the exposure was below the threshold at which the specific rule applies, or where a collective protective measure was in place, the danger is not serious in the statutory sense. Expert evidence on the actual conditions of the task, prepared with the photographs taken at the time, is what resolves this.

Concurrence with the accident and with the administrative penalty. Where an accident occurred, the defence examines whether the same facts are being punished both as endangerment and as negligent injury, and whether the labour inspectorate has already imposed a penalty for the identical breach, which engages the prohibition on double punishment. Payment of the compensation and the implementation of the corrective measures before trial are, in practice, what secures a suspended sentence.

• Workplace accidents in Alicante
• Article 152: bodily harm by negligence
• Article 142: death by negligence
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.