An employer should also be aware that an employee or his family will request that the incident be considered a work accident, even if it was a minor incident or clearly does not qualify as a work accident. Increasingly, employees are also pursuing civil claims against their employers for the consequences of an accident. All of this can discourage employers from initiating an accident enquiry, especially if, in their opinion, there are no grounds for the event to be considered a work-related accident. However, is it compulsory to appoint an accident investigation team?

When is an accident an accident at work

An accident at work is defined as a sudden event triggered by an external reason causing injury or death to an employee which occurred in the course of work. There are, therefore, four pre-requisites qualifying an accident at work:

• Suddenness of the event,
• External reason as cause,
• Connection between the event and work,
• Result of the event in injury or death of an employee.

Importantly, all of the above must occur jointly for the event to qualify as an accident at work.

In this context, it is doubtful whether an accident procedure should be initiated when one of the above mentioned conditions clearly does not arise. If an employee suffers an injury, not in the course of his work, but in the course of a football match which he has organised with other employees, can such an accident be linked to his employment with that employer? What should an employer do in such a situation?

The accident investigation team decides, not the employer

To answer this question, reference should be made to Article 234(1) of the Code of Criminal Procedure, which states that in the event of an accident at work, the employer is obliged to determine, among other things, the circumstances and causes of the accident. However, it should not be assumed that an employer may waive this obligation if, in his opinion, a given event is not an accident at work. The accident investigation team, not the employer, are authorised to determine whether an event constitutes an accident at work. Therefore, it is assumed that it is the employer's obligation to appoint an accident investigation team for each event that can potentially be considered an accident at work.

However, it is difficult to determine who is to assess whether the circumstances of a given event are likely to qualify it as an accident at work. Case law emphasises that an employer is not entitled to such an assessment. It is also stressed that it is the employer’s duty to appoint an accident investigation team, and not to appoint an accident investigation team which assumes that the event was an accident at work. This means that, even if it is clear that there are no grounds for the incident to be considered an accident at work, the employer should initiate an accident procedure enquiry.

What if the employer does not appoint an accident investigation team?

An employer who, contrary to his obligation, does not appoint an accident investigation team, can expect the labour inspector to carry out an inspection to determine the circumstances and causes of the accident. In such a situation, the employer may appeal the labour inspector's decision and file a complaint to the province administration court against the decision issued as a result of such appeal. However, one should be aware that the courts examining such cases are more likely to agree with the labour inspector. Furthermore, failure to comply with the labour inspector's order constitutes a misdemeanour punishable by a fine of between PLN 1,000 and PLN 30,000.

Regardless of the above, an employee, and, in the case of a fatal accident, members of his or her family, may request the labour court to determine that the event was an accident at work. The labour court will then examine the circumstances of the accident, and, if it finds that there are grounds for it to be considered an accident at work, it will issue a judgment replacing the accident report.

Therefore, assuming that, in principle, any accident involving an employee may result in the employer having to appoint an accident investigation team, special attention should be paid to the proper conduct of the accident procedure, including examination and assessment of the circumstances of the accident. The findings made by the accident investigation team in this respect will be decisive beyond the context of qualifying an accident at work; they may also be crucial to the employer's defence against claims made in connection with the accident. This is particularly important when claims are made several months or even years after the accident occurred.

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This text opens the cycle "Accident at work – and what next?" Subsequent posts will discuss the most important issues related to accidents at work, at both the stage of investigation and enquiry into the circumstances and causes of an accident at work and related legal proceedings.

Anna Kluj