An employer is required to assure the health and safety of its employees in all aspects related to the employment (Article L.312-1 of the Labor Code). An employer is thus required to take all measures necessary for the protection of the health and safety of its employees, in particular the assessment of the risks for the health and safety of its workers and implementing, following that assessment, the taking of adequate preventive measures.
In assuming the management of the business, an employer has the full power to organise the work and infrastructure of its business. In exchange, an employer is liable for all violations of the legal provisions on workplace health and safety and of the regulations in force, and in principle for accidents that could occur.
The supervision of the organisation and execution of work on construction sites is in principle incumbent upon the employer’s legal representative. With respect to the business head’s criminal liability, it should be specified that pursuant to Article 34 of the Criminal Code, "the criminal liability of legal persons does not exclude that of natural persons who have committed or are complicit in the same violations".
The principle of a business head’s liability in case of an accident on a construction site requires that the business head ensure the constant application of the Labor Code’s provisions and those of its implementing regulations, as well as any other laws and regulations on workplace health and safety, without allowing the business head to assert his or her remoteness or the error of an officer or other business officer. For example, it is not enough to make protective material available to personnel, its effective use must be ensured such that it is not possible to invoke any grounds for justification of misuse.
There is only one exception to principle of automatic liability for a business head that results in the exemption from liability, when the business head introduces proof that he or she has delegated the management of one part of the business to an officer or other person empowered by him or her who has the necessary competence and authority to effectively ensure the compliance with the law, in which case his or her liability is transferred to his or her delegate (See Court 8 February 2002, No. 46/02).
Pursuant to paragraph 1 of Article L.314-4, violation of the provisions on workplace health and safety in the Labor Code or the regulations, is punishable by imprisonment of eight days to six months and a fine of EUR 251 to EUR 25.000 or only one of these penalties.
Compensation for civil-law harm suffered by the employee shall be covered on a flat rate basis by the Association of Insurance against Accidents (Association d’Assurance contre les Accidents), whether or not the employer is at fault. However, if it is established under criminal law that the employer voluntarily caused the accident or in certain cases traffic accidents, the employee that is the victim of the accident or his or her beneficiaries may claim potential additional compensation from the employer, for the part of the harm not covered by the flat rate allocated by the Association of Insurance against Accidents.
It should be noted that the appointment of a health and safety coordinator, obligatory pursuant to the Grand-Ducal Regulation of 27 June 2008 on the minimal health and safety requirements to execute on temporary or mobile construction sites, does not discharge the employer of employees on the construction site from its liability, and it must scrupulously ensure compliance with the obligations of that regulation, as well as the health and safety coordinator’s guidance. In particular, a specific health and safety plan should be established and transmitted to the project owner (maître d’ouvrage), or to the health and safety coordinator at least 15 working days prior to the commencement of the work.