In short. The principal undertaking does not answer for one thing: it answers on five planes at once —administrative fine, joint and several liability on health and safety, benefits surcharge, civil damages, and wage and Social Security debts— each with its own legislation and its own time limit. Only one of them, the civil damages, can be transferred to a policy. The surcharge under article 164 of the General Social Security Act —which paragraph 2 declares uninsurable— and the Inspectorate's fines come out of cash, always. Knowing where that line runs is what allows an insurance programme to be sized with judgement.
In 2025, 93 workers died during working hours in the transport and storage sector and 164 in construction, according to the January–December 2025 advance release of the Workplace Accident Statistics published by the Ministry of Labour and Social Economy. A considerable share of those fatalities occurs on other companies' premises: at the client's terminal, in the principal's warehouse, on a third party's loading bay.
When the accident happens on your site and the injured worker belongs to a contractor, liability does not stop at the loading bay door.
Joint and several, secondary or direct: three regimes in one file
The vocabulary is worth fixing first, because everything else depends on it. A single accident can trigger three liability regimes of quite different natures. We summarise them here so the argument can be followed; the full map, provision by provision, is in contractors' and subcontractors' liability.
Joint and several. The creditor —the worker, the Social Security Treasury, the Inspectorate— may proceed indifferently against the contractor or against you, and claim the whole amount from either. There is no need to exhaust the primary obligor first. This is the regime of article 42.2 of the Spanish Workers' Statute for wage and Social Security debts, and of article 42.3 of the consolidated text of the LISOS, the Spanish Act on Labour Offences and Penalties, in health and safety matters.
Secondary (subsidiary). It only comes into play where the primary obligor cannot answer. Article 168.1 of the General Social Security Act establishes the secondary liability of the owner of the works or industrial undertaking, and only where the responsible employer has been declared insolvent. It is a narrow and conditional case: it is not equivalent to article 42 of the Workers' Statute, nor does it turn the principal into a joint and several debtor for contributions.
Direct and personal. This is civil liability for one's own conduct. Articles 1902 and 1903 of the Spanish Civil Code require damage caused by fault or negligence to be made good, including damage caused by those for whom one is answerable —and article 1903 creates a direct liability for the acts of others, not a secondary one—. Where the injured party is a self-employed contractor, article 8.6 of Law 20/2007 adds a distinct obligation to indemnify on the part of the company that breaches its supervision duties, provided there is a direct causal link.
The duty breached is, in almost every case, the same: article 24.3 of Law 31/1995 —supervising health and safety compliance where works or services within one's own line of business (propia actividad) are contracted out and performed on one's own premises— as implemented by article 10.2 of Royal Decree 171/2004, which requires the risk assessment and prevention plan for the works or service contracted, together with evidence of the information and training given to the workers who will take part, to be demanded in writing and before work starts. Article 10.3 adds the obligation to check that contractors and subcontractors have set up means of coordination between themselves. How all that is documented is set out in what documentation to require from a contractor.
The five layers of consequences of an accident on contracted work
This is the map almost nobody draws in full. Each layer has its own legislation, its own time limit and its own regime. And, above all, each answers differently the only question that matters to a finance director: does a policy absorb this, or does it come out of cash?
| Layer | Nature and legislation | Absorbed by a policy? |
|---|---|---|
| Administrative fine | Fine from the Inspectorate. Offences under articles 12.13 and 12.14 of the LISOS (serious) and 13.7 and 13.8 (very serious in activities designated as hazardous). Amounts under article 40.2: serious, €2,451 to €49,180; very serious, €49,181 to €983,736 | No. Administrative fines are not insurable. The policy can cover legal defence costs in the proceedings, subject to the terms of each policy |
| Joint and several liability on health and safety | Article 42.3 of the LISOS: the principal company is jointly and severally liable with contractors and subcontractors for compliance with the obligations of Law 31/1995 in respect of the workers they engage at its workplaces, and only where the offence occurred at the principal's workplace | No in its penal aspect: it extends a fine to the principal, not a loss. Yes for the civil consequence arising from the same facts, subject to the terms of each policy |
| Benefits surcharge | Article 164.1 of the General Social Security Act: an increase of 30% to 50% in all economic benefits arising from the accident, according to the seriousness of the breach | No. Article 164.2 places it directly on the infringing employer and declares void as a matter of law any agreement to cover, offset or transfer it |
| Civil liability for damage | Damages payable to the worker, their dependants or third parties: articles 1902 and 1903 of the Spanish Civil Code; article 8.6 of Law 20/2007 where the injured party is self-employed | Yes, subject to the terms of the policy. It is the only fully transferable layer |
| Wage and Social Security debts | Article 42.2 of the Workers' Statute: joint and several liability for Social Security obligations for the three years following completion of the engagement and for wage obligations for the following year | No. It is not damage to a third party but the company's own debt: it falls outside the subject matter of a liability policy |
Three points of precision about the table, because this is where the errors cluster.
The article 42.2 periods are not a single period. They are three years for Social Security obligations and one year for wage obligations, both running from completion of the engagement. Confusing them —or merging them into "three years"— is the most repeated inaccuracy.
The surcharge deserves an article of its own. Its regime, how it is quantified and why no policy can assume it are set out in why the benefits surcharge cannot be insured. We add here only the nuance of article 164.3 of the General Social Security Act: the surcharge is independent of and compatible with liabilities of every kind. It replaces nothing and offsets nothing. Whether it extends to the principal undertaking is the subject of conflicting case law and the position is evolving: it cannot be treated as settled either way.
Article 42 of the Workers' Statute requires "propia actividad". Not every engagement qualifies. And if your engagement is in construction, the specific regime of Law 32/2006 is superimposed on it —registration in the Register of Accredited Companies (REA), the Subcontracting Register, limits on the length of the subcontracting chain— and that regime applies only in that sector: it cannot be transposed to a logistics or industrial engagement.
Do you know whether your policy responds for your contractors' workers, and with what sub-limit? Let us review your liability programme.
Does requesting the Social Security certificate release you from liability?
Yes, but from far less than is usually assumed. And this is probably the most expensive misunderstanding in the whole field.
Article 42.1 of the Workers' Statute requires anyone contracting or subcontracting works or services within their own line of business to verify that contractors are up to date with Social Security contributions. To do so they must request in writing from the Spanish Social Security Treasury a certificate of no outstanding contributions, which the Treasury "shall issue without fail within a non-extendable period of thirty days". Once that period elapses, the requesting employer is released from liability.
The mechanism is sound and should be used with documentary rigour: a written request, with a date-stamped record, before performance begins. But its scope is strictly what the provision says.
That release covers Social Security debts. It does not cover the wage debts under the same article 42.2. It does not cover joint and several liability on health and safety under article 42.3 of the LISOS. It does not cover civil liability arising from an accident. And it plainly does not cover the company's own fine. The certificate is not a blank cheque: it is a narrow, well-defined shield.
Outsourcing prevention does not transfer liability
This is an argument seldom deployed and highly effective in the internal debate with an operations department that treats an external prevention service as an outsourcing of risk.
Article 14.4 of Law 31/1995 admits of no alternative reading: functions delegated to a prevention service —internal, external or shared— supplement the employer's obligations but do not release the employer from them. What is bought in is technical capability; ownership of the duty of protection under articles 14.1 and 14.2 stays with the company. Before the Inspectorate and before the courts it is you who answers, not your provider.
Article 14.5 completes the picture with an equally categorical rule: the cost of health and safety measures shall under no circumstances fall on workers. Passing that cost contractually to the contractor is a matter of allocating money between businesses; as against the injured worker and as against the labour authorities, the health and safety obligation is not transferred by contract.
The practical consequence is easy to state and hard to accept: you can share the cost, you can pass on the penalty, you can require guarantees. What you cannot do is stop being liable.
What you can do: transfer the transferable part
Once the immovable part is delimited, a portion of the exposure remains that does lend itself to insurance treatment. And it is not a small one: in a serious accident, the civil damages are usually the largest figure in the file.
The elements worked on when designing the programme are these, always subject to the terms of the policy ultimately placed:
- The general liability section, with a limit per claim sized on the real exposure of the activity, not on the sector standard.
- The employers' liability sub-limit, which responds to claims from your own workforce and which we analyse in detail in what employers' liability covers.
- The contractors' and subcontractors' liability sub-limit, which is a separate section with its own wording and its own amount. Its scope —and the difference between covering secondary liability and covering your own— is dealt with in contractors' and subcontractors' liability.
- Legal defence costs, both in the penalty proceedings before the Inspectorate and in the civil claim arising from the same accident. The fine is not insurable; the defence against it usually is.
- Coordination between the businesses involved: additional insured status, a cross liability clause and consistency between the wordings of principal and contractors, so that a claim does not end in a coverage dispute between policies on the same project.
Together, that is what constitutes a properly built liability programme for a business working through a contracting chain. The rest —fine and surcharge— is managed with documented prevention, not with premium.
Before approaching the market it is worth knowing which part of your exposure is genuinely transferable. Put your case to us.
The role of an independent broker
Two programmes with the same main limit and a similar premium can leave radically different exposures on a contracted job, depending on where the employers' and contractors' sub-limits sit, how the definition of third party is drafted and whether defence costs in administrative proceedings sit inside or outside the limit. As an independent brokerage registered with the Spanish DGSFP under reference J0140, we act on the client's mandate: we analyse the exposure before moving the programme, we negotiate the wording and not only the price, and we approach the market with the risk map already built.
In a claim involving several undertakings working alongside one another, that independence shows where it matters most. The debate is not only whether there is cover, but which policy responds, in what order and up to what limit. In that scenario we represent the company before the insurers involved, not the other way round.
Frequently asked questions
How far does the principal undertaking's liability reach? To five simultaneous fronts: administrative fine, joint and several liability on health and safety (article 42.3 of the LISOS), benefits surcharge (article 164.1 of the General Social Security Act), civil damages, and wage and Social Security debts (article 42.2 of the Workers' Statute). Each has its own legislation and its own time limit.
Which part is insurable and which is not? Civil damages are insurable, together with legal defence costs, subject to the terms of each policy. Administrative fines are not, nor is the benefits surcharge, which article 164.2 of the General Social Security Act expressly declares uninsurable. The article 42.2 debts are the company's own debt, not damage to a third party.
Does requesting the Social Security certificate release me? Only from Social Security debts. Article 42.1 of the Workers' Statute requires it to be requested in writing and sets a non-extendable period of thirty days for the Treasury to issue it. It does not release you from wage debts, from health and safety liability, or from civil liability for an accident.
Does an external prevention service release me? No. Article 14.4 of Law 31/1995 provides that functions delegated to a prevention service supplement the employer's obligations but do not release the employer from them. Technical execution is outsourced; the duty is not.
How much can a fine cost? Under article 40.2 of the LISOS, in the wording given by Law 10/2021 and applicable from 1 October 2021, a serious health and safety offence ranges from €2,451 to €49,180 and a very serious one from €49,181 to €983,736.
Sources and legislation
- Royal Legislative Decree 2/2015, consolidated text of the Spanish Workers' Statute, articles 42.1 (certificate of no outstanding contributions) and 42.2 (joint and several liability and time limits).
- Royal Legislative Decree 5/2000, consolidated text of the LISOS, articles 12.13, 12.14, 13.7, 13.8, 40.2 (amounts, in the wording given by Law 10/2021) and 42.3 (joint and several liability of the principal company).
- Royal Legislative Decree 8/2015, consolidated text of the General Social Security Act, articles 164.1, 164.2 and 164.3 (benefits surcharge) and 168.1 (secondary liability of the owner of the works or industrial undertaking).
- Law 31/1995 on the Prevention of Occupational Risks, articles 14.1, 14.2, 14.4, 14.5 and 24.3.
- Royal Decree 171/2004, implementing article 24 of Law 31/1995, articles 2, 10.2 and 10.3.
- Spanish Civil Code, articles 1902 and 1903.
- Law 20/2007, the Spanish Statute of Self-Employment, article 8.6.
- Law 32/2006 on subcontracting in the construction sector (applicable to that sector only).
- Ministry of Labour and Social Economy, Workplace Accident Statistics, January–December 2025 advance release.
This information is for guidance only and does not constitute binding advice. Cover, limits and exclusions are governed in all cases by the particular conditions of each policy. New Brokers Correduría de Seguros, S.L., registered with the Spanish DGSFP under reference J0140.
