When employer is liable for compensation?

When employer is liable for compensation?

Damages caused by the Mexican worker

4.- The second judicial position, on the contrary, denies that the fact of being an employee of another party makes the employee impervious to liabilities arising from breaches of contract (Supreme Court of the Canary Islands, of April 18, 2006 (Rec. 57/2006) and of Madrid, of March 28, 2007 (Rec. 4807/2006)). Thus, they defend the direct application of Art. 1101 of the Civil Code based on Art. 4.3 of the Civil Code, which establishes the supplementary nature of civil legislation.

5.- A third intermediate judicial position establishes that the employee is not immune from the consequences of his acts but that neither can the contractual liability of the civil law be applied without qualification. This doctrine, taken up by the Supreme Court in its Judgment of November 14, 2007 (Rec. 4726/2006), establishes that, derived from the basic labor duty to comply with the specific obligations of his job in accordance with the rules of good faith and diligence (Arts. 5. 1 a), 20 and 54.2 b) ET), the employee must be liable (including for compensation) for his acts, but this does not mean that the rules governing contractual liability for fraud or negligence of the Civil Code (Arts. 1101 et seq. of the Civil Code) can be transferred without any qualification whatsoever.

The employee must pay damages

In compliance with the duty of protection, the employer must ensure the safety and health of the workers in his service in all aspects related to work. For these purposes, within the framework of his responsibilities, the employer shall carry out the prevention of occupational risks by integrating preventive activity in the company and adopting as many measures as necessary for the protection of the safety and health of workers (…)”.

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Administrative liability arises with non-compliance with the regulations on occupational risk prevention. The employer may be sanctioned by the Administration when he fails to comply with the obligations imposed by law, even if no accident occurs. The sanction will consist of a monetary fine, but when there are exceptionally serious circumstances, the suspension of work activities for a certain period of time or, in extreme cases, the closure of the corresponding work center may be ordered.


A very important difference when the activity is carried out, individually or as a company, is the liability. It is limited, in the case of a limited company, to the capital contributed.  When the entrepreneur carries out the activity in his own name, he is liable with all his present and future assets.

This form of company, Sociedad de Responsabilidad Limitada Unipersonal (Sole Proprietorship Limited Liability Company), arises so that the individual entrepreneur carries out his activity with limited liability to third parties and his assets are exempt from liability.

Claim for damages against a worker

As far as occupational risks are concerned, current labor legislation, and specifically the Law on Prevention of Occupational Risks, imposes on the employer and employee (BOTH), the fulfillment of a series of duties aimed at ensuring the safety and health of the worker.

We would like to draw your attention to this, that is to say, that you should be clear that the obligations in terms of occupational risk prevention are not only of the employer, but that the worker himself is also obliged to ensure his own health and safety.

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This is important, as we will see in more detail below, when determining whether or not the company is responsible, and to what degree, for the occupational accident or occupational disease suffered by a worker and the amounts and compensation that may be recognized to the worker.

It must inform and train its workers correctly so that they know how to use these means of prevention and ensure that its instructions aimed at guaranteeing the safety and health of workers are complied with.