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TRAVEL RISK MANAGEMENT 2015
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Transposition of Directive 96/71
Criminal Liability
Act XVI of 2001 amended the Labour Code in line with the provisions of Directive 96/71.
The rules on strict liability of the employer under the Labour Code also cover the case of posting employees abroad (as well as cross-border assignments and labour hiring).
According to the unoicial commentary to Section 166 of the Labour Code, when posting a worker to another Member State, the sending employer bears joint and several liability together with the receiving employer for damages caused to the employee.
Criminal Liability under the Criminal Code is not strict.
An employer may commit “professional misconduct” under Section 165 of the Criminal Code (Act C of 2012 on the Criminal Code) if by breach of a rule pertaining to his profession,
he causes imminent danger to the life, safety or health of another person (e.g. his employee) or causes bodily harm to that person, and in aggravated situations even death, permanent physical disability, serious health impairment, a mass catastrophe or certain combinations thereof.
According to the unoicial commentary to Section 165 of the Criminal Code, the term “a rule pertaining to one’s profession” also includes rules of occupational safety, management codes and health & safety obligations of employer set out by law.
The employer can only be held liable if its negligence is proven in connection with the breach (or it can be proven that it wilfully disrespected its safety obligations).
Therefore, the employer’s liability is not strict. No special rules on burden of proof apply as compared to the general rule of proof of fault in criminal law.
If it is proven that the employer’s intention also extended to causing imminent danger, it is sanctioned more severely for an intentional crime.
Similarly to the HSWA, 165 of the Criminal Code can also be breached in the event of the exposure of a person to risk, therefore its provisions may apply to employees posted abroad as well.
Finally, prosecution of corporate entities, is only possible under Hungarian law in case
of intentional crimes and under speciic circumstances (e.g. when the crime was committed for the beneit of the corporate entity, or the crime was committed by means of the corporate entity and by one of its senior oicials). Therefore, except for the unlikely situation in which the employer intends to expose his employee’s life and physical integrity to risk, there is no chance for prosecution of the entity itself. (See Section 2 of Act CIV of 2001 on Criminal Sanctions Applicable to Legal Persons.).