In dealing with occupational health matters, employers are bound by a large number of obligations, including:

• risk assessment and prevention (drawing up the ‘single document’, which is a document that lists all the professional risks in a workplace, safety training, etc.);
• declaring accidents at work and financing their insurance coverage (accidents at work and occupational illness);
• health monitoring (occupational medicine) and redeployment of employees who are not fit to work;
• training employees regard the main aspects of safety and health at work.

The employer’s ‘responsibility’ in the broad sense is historically at the origin of the law of safety and health at work. The employer is responsible for paying the corresponding insurance and taking all necessary measures if something happens to an employee.

Unfortunately, this corporate responsibility can be misunderstood: what happens to an employee in the workplace will not always be considered a labour accident. This will depend on several matters such as:

• What was the employee doing?
• Was it a work task?
• Where did it happen?

Below are two examples.

Employers’ responsibility for anything that happens to an employee in the workplace and during work hours

In one case,  an employee suffered an adverse event, but this was not considered to be a labour accident, so no liability was established against the employer, The Court stated that when compensation for damages is claimed, there are four cumulative conditions to determine contractual liability:

• unlawful conduct;
• damage;
• the causal relationship; and
• the attribution factor (that is, the basis on which responsibility is attributed).

(18190-2016 LIMA)

These criteria are important because they correct incorrect criteria set out in another case (see below).

Employers’ responsibility for labour accidents that happen to employees.

Another example where there is a risk of confusion is illustrated by recent decisions: an employee dies of a heart attack at work or in a fight with a co-worker or breaks a bone while drunk at the office party. Does this death or injury constitute a workplace accident? A judgment held that it did, based on the following reasoning.

An accident at work, the occurrence of which is demonstrated by damage suffered by the worker, must be attributed to a breach of the employer’s duty of prevention. This fact generates an obligation for the employer to pay the victim or his beneficiaries compensation (Cassation N° 4258-2016-LIMA).

As described above, this decision has not been followed by most Courts, because not all things that happen to employees during working hours are going to be labour accidents.

There are two lessons to be drawn from these decisions:

• Employers must be vigilant about their obligation to report work accidents and investigate the causes of work accidents in order to determine whether they were the responsibility of the employer.
• If an employer declares an accident as a work accident the employee can be entitled to claim for damages from the employer. In this case, the amount claimed can differ from case to case.