The difference between responsibility for the work environment and penal liability

Responsibility for safety means responsibility for proactive measures relating to the work environment, while penal liability implies the determination post facto of who is responsible for an accident/incident having occurred.

Responsibility for safety

The responsibility implying a duty of taking steps to ensure that the work environment is satisfactory and that any risks are eliminated is referred to in the Work Environment Act as responsibility for safety (skyddsansvar – “safety responsibility”). Chap. 3 of the Work Environment Act apportions this responsibility between a number of different parties, described in general terms as “employer”, “manufacturer”, “supplier”, “the party in control of a workplace” and so forth.

The substance of “safety responsibility” varies from one party to another and can be variously limited. The most extensive responsibility devolves on the employer, who is obliged to take all reasonable measures needed in order to protect his employees from ill-health and accidents.

“Safety responsibility” under Chap. 3 of the Work Environment Act is characterised by the responsibilities of different parties not being mutually exclusive. On the contrary, it is normal in any situation for there to be more than one responsible party, each with his particular responsibility. Since most commercial operations are conducted in corporate form or under public auspices, responsibility for safety is usually vested in a legal person. The Act, however, does not say which physical person or persons must see to it that the legal person discharges its responsibility for safety. This is an internal matter for the legal person and can be resolved in various ways. Establishing such an allocation of tasks is part of the responsibility of the management bodies. That responsibility also includes monitoring the allocation decided on, ensuring that it works and intervening if it does not.

Penal liability

Penal liability, then, is based on post facto determination of who is to be held responsible for an accident or incident. Penal liability under Swedish law must always be imposed on a natural person and cannot be imposed on a legal person. True, a legal person can incur other legal consequences of crime, such as a corporate fine, a sanction charge or forfeiture, but this does not constitute a penalty or punishment in the legal sense. It is the court that decides where penal liability is to lie. It is not possible for this question to be resolved by an internal decision or agreement within the undertaking or authority. Thus the internal allocation of tasks and responsibilities is not crucial to the location of penal liability, but it does normally make a big difference in judicial proceedings. In the judicial proceedings account is had of whether the obligations incurred by a natural person are matched by adequate powers and economic resources and whether that person possessed adequate competence for them. It must further be established that the person acted wilfully or negligently.

Provisions on penal liability are contained in the Penal Code, the Work Environment Act and certain Provisions issued by the Work Environment Authority, formerly the National Board of Occupational Safety and Health.