Obligations and rights regarding Occupational Health and Safety are regulated by Law No. 29783 – Occupational Health and Safety Law (hereinafter the “Law”) and its Regulations, approved by Supreme Decree No. 005-2012-TR (hereinafter the “Regulations”), which we will collectively refer to as the “OSH Standards.”

In this regard, it should be noted that, according to OSH Standards, a Work Accident is defined as: "Any sudden event that occurs as a result of or in the course of work and causes the worker to suffer an organic injury, functional disturbance, disability, or death. An accident at work is also one that occurs during the execution of the employer's orders, or during the performance of work under their authority, even outside the workplace and working hours."

Likewise, a Hazardous Incident defined as “Any potentially risky event that could cause injury or illness to people at work or to the population.”

Main obligations of the Employer in relation to Workplace Accidents:

Taking the above into account, the OSH Standards establish how the Employer must proceed in the event of a Work Accident; its main obligations being:

1. Provide medical attention to the injured worker.
2. Investigate the accident: you must comply with at least the following requirements: Identify risk factors in the company, immediate causes (unsafe acts and conditions), and root causes (personal factors and work failures). In addition, any deficiencies in the OSH Management System must be detected in order to plan the necessary corrective measures, and all of this must be duly documented.
3. Report the accident. It must be reported to the Peruvian Ministry of Labor and Employment Promotion (hereinafter the “MTPE”).
4. Record the accident. The employer must have a “Record of work accidents, occupational diseases, and dangerous incidents that have occurred in the workplace.”
5. Take corrective measures. Once the investigation has been carried out and the causes of the workplace accident have been determined, appropriate corrective measures must be implemented to prevent the workplace accident from happening again.

Basis for the employer’s liability

The basis for the employer’s liability in occupational safety and health lies in the employer's duty to prevent risks and protect the life, health, and well-being of its workers. In Peru, this duty includes complying with all OSH Standards and, in high-risk activities such as construction, where it is mandatory to hire Supplementary Risk Insurance for workers subject to such activities (“SCTR”).

The employer's liability arises when they fail to comply with the aforementioned obligations or disregard OSH Standards, since the employer is primarily responsible for (i) complying with and (ii) enforcing OSH Standards. In this regard, although it is true that the employer may delegate their authority and/or functions to other personnel, the latter must be accountable to the employer for their actions, and even this does not exempt the employer from their duty of prevention. In addition, this responsibility not only applies to the employer's workers, but also includes contractors and subcontractors who provide their services on the employer's premises.

Types of liability

In the event that the employer fails to comply with the OSH Standards set forth above, they shall be administratively, civilly, and criminally liable.

A. Administrative Liability

Administrative, oversight and sanctioning procedures, in labor matters, are established by Law No. 28806 – General Labor Inspection Law (hereinafter the “LGIT”) and its Regulations, approved by Supreme Decree No. 019-2006-TR (hereinafter the “RIT”).

The LGIT and its RIT establish infringements and their corresponding sanctions for non-compliance with OSH Standards. Thus, in such events a Work Accident or Dangerous Incident are not necessary for a fine to be levied against the employer. Mere non-compliance with these regulations is sufficient for the employer to be subject to sanctions and fines.

SUNAFIL is the entity responsible for verifying whether the employer complies with OSH Standards and other labor obligations. To this end, the entity may carry out inspections either in response to a complaint from workers or on its own initiative.

SUNAFIL authorities have the power to carry out the following inspection activities:

• Enter freely at any time of the day or night, without prior notice, into any workplace, establishment, or other location;
• Conduct any investigation, examination, or test deemed necessary to verify that legal provisions are being properly complied with;
• Request information, alone or in the presence of witnesses, from the subject of the inspection or from company personnel on any matter relating to the compliance of legal provisions, as well as to demand identification or the reason for their presence from persons found in the workplace being inspected;
• Take or remove samples of substances and materials used or handled in the establishment, take measurements, obtain photographs, videos, image recordings, draw up sketches and plans, provided that the subject of the inspection or their representative is notified.
• Collect and obtain information, data, or background information relevant to the inspection function.

It is important to mention that preventing SUNAFIL inspectors from entering the workplace, as well as any other obstruction of their inspection work, is considered a VERY SERIOUS labor violation, which may result in an administrative fine of between 2.63 UIT and 52.53 UIT (between USD 4,200.00 and USD 83,900.00), depending on the number of workers affected.

Administrative Sanctioning Procedure

In the event that SUNAFIL inspectors verify non-compliance with OSH Standards which, in their opinion, poses a serious and imminent risk to the safety and health of workers, they may order the immediate suspension or prohibition of work or tasks. Additionally, in the event of a fatal work accident, inspectors may immediately order the temporary closure of the economic unit, during the inspection.

In the event that any non-compliance with OSH Standards has been verified, inspectors may issue a Notice of Violation. Likewise, if the temporary closure of the economic unit or the suspension of works has been ordered, this will be formalized in a Temporary Closure Notice.

Faced with this sanction, the employer can defend itself through various legal actions, mainly by filing administrative appeals with SUNAFIL.

B. Civil Liability

In Peru, civil liability is based on a basic rule: any person who, through intent or fault, causes damage to another will be obliged to compensate them.

On that basis, the law establishes that employers are also liable for damage caused by people working under their direction, provided that the damage occurs while they are performing their duties. This means that the company is not only liable for its direct employees, but also for personnel acting under their orders, such as contractors, subcontractors, or third parties performing activities within the workplace. In these cases, the company and the perpetrator of the damage may be jointly and severally liable, meaning that both must assume responsibility for repairing the damage caused.

In this regard, it is worth noting Cassation No. 260-2012-Cajamarca, in which the Supreme Court established the liability of a principal company for the omission of a subordinate of a contractor company, because it considered that the following criteria were met:

• Existence of a relationship of subordination that empowers the action of the person who is subordinate;
• The damage that arises must be connected with the fulfillment of the activity entrusted by the main company;
• The act generating the damage must be committed by the subordinate;
• Joint and several liability empowers those affected not only to demand from the person who directly causes the damage, but also from the person who ordered the risky activity.

Contents of the compensation

Compensation for damages caused as a result of civil liability includes:

• The consequences arising from the action or omission causing the damage [actual damage and loss of profits];
• Personal injury and moral damage, if applicable;
• Legal interest accrued, calculated from the date on which the damage occurred.

In this regard, it should be noted that moral damages are compensated based on their magnitude and the harm caused to the person. If the compensation for damages cannot be proven in a specific amount, it is up to the judge to set it with an equitable assessment, in accordance with Article 1332 of the Civil Code.

Likewise, in accordance with the above, we can point out that the Superior Court of Justice of Ancash, through its ruling No. 00484-2020-0-201, established certain criteria for determining moral damages:

• The permanence of the damage and the victim's inability to fully rebuild their original life plan;
• The age of the victim and the length of time the injury will last;

C. Criminal Liability of the Employer

The employer may face criminal liability when they deliberately fail to comply with OSH Standards despite being legally obliged to do so, despite having been previously notified by the competent authority, and this failure to comply poses a serious risk to the life or integrity of their workers.

If such failure to comply with these regulations results in serious injury or death to a worker or third party, which could have been avoided, the law provides for higher prison sentences (up to eight years' imprisonment). However, the employer shall not be criminally liable when the damage results exclusively from the worker's own failure to comply with safety regulations.

In this regard, according to the interpretation of the Seventh Criminal Liquidation Chamber of the Superior Court of Justice of Lima in Case No. 1164-2021, three (3) elements must be present for the employer to be held criminally liable:

• Infringement of occupational health and safety regulations;
• The imminent endangerment of the life, health or physical integrity of the worker in a serious way, materialized in a specific danger. That is to say, the mere performance of the conduct is not enough, but it must generate a real and present danger, that is, very close to its effective realization or that is close to being committed; and
• A deliberate violation by the employer. In other words, there must be a deliberate intention of non-compliance with the OHS Standards.

Therefore, according to the Supreme Court's ruling in this case, in order to be exempt from criminal liability, it is not sufficient for the employer to implement OSH Standards to prevent incidents and/or fatal accidents. The employer also has a responsibility to prevent reckless behavior by its workers through timely control, such as supervising not only the tasks of its workers, but also compliance with OSH Standards.

Scope of liability

In principle, the scope of criminal liability for non-compliance with OSH Standards is based on the employer's duty of care. As indicated above, the employer has the duty to (i) comply with and (ii) enforce OSH Standards. Therefore, criminal liability for failure to fulfill this duty of care falls first and foremost on the legal representative of the company, who is usually the general manager, in accordance with the provisions of Article 27 of the Criminal Code:

However, criminal liability is not limited to the legal representative of the company, but also extends to those who have decision-making, oversight, or management powers. According to Article 13 of the Criminal Code, a person is criminally liable if, having a legal obligation to prevent harm—or having created a dangerous situation—they fail to act to prevent the outcome from occurring. In other words, if someone who should have intervened to prevent the accident fails to do so, they can be punished as if they had participated directly.

In this regard, in the specific case of a serious accident and the death of a worker due to non-compliance with OSH Standards, criminal liability will begin with the legal representative of the company and extend to all those who, by the nature of their duties, have a duty to comply with and enforce OSH Standards.

On the delegation of powers as a means of exempting oneself from liability

With regard to the delegation of powers to supervisors or third parties, the Permanent Criminal Chamber of the Supreme Court has established the following in Cassation Ruling No. 1563-2019/LA LIBERTAD.

• Duty of guarantee: the duty of guarantee of the legal representative of the company is based precisely on the powers that they have as controller of the progress of the administration of the legal entity, by virtue of which they assumes the obligation to (i) ensure that the regulatory provisions that seek to prevent a danger from becoming an injury are complied with; as well as (ii) to supervise its due compliance by the other members of the company.
• Delegation of responsibilities: the existence of an act of delegation and its acceptance by the delegate, in principle, does not imply the absolute disappearance of the delegator's responsibility. The latter maintains as a space of competences (i) selection of the delegate; (ii) surveillance and supervision of the delegate's performance; (iii) provision of resources in favor of the delegate so that they can carry out their activities optimally; and (iv) promote appropriate coordination among delegates.
• The legal representative may delegate both duties of supervision and duties of execution of acts. However, even in the case in which the legal representative delegates the execution of acts, the content of the duty does not cease, instead they become a mediate guarantor. In other words, after the delegation, the employer is obliged to ensure that the delegate complies with the duty assigned to them.

In other words, in order to mitigate and/or be exempt from criminal liability arising from a fatal accident caused by non-compliance with OHS Standards, at least the following conditions must be met:

• Formally appoint a delegate;
• Formally establish the duties of oversight and supervision of the delegate, with respect to compliance with the OHS Standards;
• To provide the delegate with the appropriate powers to carry out their functions of oversight and supervision;
• To provide the delegate with the resources so that they can carry out their activities optimally;
• Promote coordination among delegates; and
• Carry out constant supervision of the delegate, in order to ensure that they comply with their duties of oversight and supervision.