The Social Penal Code is modified by the law of 29th February 2016 supplementing and modifying the Social Penal Code and different provisions of social penal law. The Code was published in the Official Journal on 21 April 2016.
For external services for prevention and protection at work (ESPP) and for all persons responsible for well being in a company we enumerate the following points of attention.
1. Prevention of psychosocial risks
Since 1 September 2014 an employer must take into account the new rules relating to psychosocial risks. Not only new procedures must be inserted in the work rules, which provide the employees with the possibility to formally or informally raise psychosocial issues with a person of trust or a prevention advisor, but the employer should also substantially involve the prevention of psychosocial risks in its policy relating to wellbeing at work (integrating in risk analysis, taking appropriate individual and collective measures regarding wellbeing, …). Many companies have also modified their internal organization to the psychosocial risks by e.g. appointing a person of trust (even if this is not mandatory).
An employer who did not comply with his obligations relating to wellbeing, could (in principle) be held criminally liable (based on the old article 128 Social Penal Code), but there were no specific provisions in the Social Penal Code relating to psychosocial risks.
This has now changed due to the new legislation that introduces a long list of very specific, new breaches of the specific obligations relating to psychosocial risks. The legislator has described the new breaches and penal provisions in detail, to comply with the penal principle of legality. Due to this clear penalization the legislator now puts in front better prevention of the psychosocial aspects at work: everyone is clearly informed of which penal behavior exists, so everyone knows which rules he/she has to comply with.
You best check whether the new legislation relating to psychosocial risks is correctly implemented in your company, based on the list of breaches and penal provisions.
2. Liability of ESPP
While drafting the Social Penal Code, there was not one provision in which the content of the old article 81, 2° of the Wellbeing Act Law was resumed, which contained sanctions in case persons who do not belong to the personnel of the employer do not exercise the tasks they were entrusted with in application of the Wellbeing Act or exercise such tasks in breach with the law or its implementing orders.
Because of the abolition of this article, the criminal liability of the responsible persons of the ESPP was not aimed at by the Social Penal Code, only the penalization based on common penal law with regard to the ESPP (e.g. article 418-420 Penal code: unintentional killing / unintentional assault and battery) remained an option.
With the new legislation the breach of a provision relating to wellbeing by ESPP is finally introduced in the Social Penal Code. This violation will be punished with a sanction of level 3 (either a penal fine of 600 to 6.000 EUR, or an administrative fine of 300 to 3.000 EUR) or level 4 when the breach leads to health damage or an industrial accident for an employee (either imprisonment of 6 months to 3 years and/or a penal fine of 3.600 to 36.000 EUR, or an administrative fine of 1.800 to 18.000 EUR).
Whether this change has actually opened the door to more liability claims against the ESPP of the employer in case of an industrial accident, is actually not clear. However, one thing is already certain: the argument that a violation of the Wellbeing Act is no longer a crime for the ESPP since the entry into force of the Social Penal Code does no longer count. The ESPP and their employees can indeed directly be prosecuted criminally and this based on article 127, 2° of the Social Penal Code.