Introduction

In Germany, health and safety at work is regulated by acts, ordinances and trade association regulations.

Pursuant to the Occupational Health and Safety Act, employers must structure work in such a way that it prevents, insofar as possible, any threat to the physical and mental health or wellbeing of employees. Employers must:

  • establish an appropriate organisation;
  • assess working conditions; and
  • implement occupational health and safety measures where necessary.

Employees must further be instructed accordingly.

Pursuant to Occupational Health and Safety Act regulations, employers must appoint company physicians and specialists for workplace safety and establish a workplace health and safety committee.

Numerous workplace-related ordinances include the Screen Work Ordinance, the Load Handling Ordinance and the Workplaces Ordinance. These ordinances impose further duties that the employer must fulfil.

In addition, statutory accident insurance institutions issue regulations on accident prevention. Employers and employees must also comply with the regulations of the relevant trade association.

Responsibility and liability

Under public law on occupational health and safety, employers are responsible for compliance with performance of the acts, ordinances and regulations of trade associations and state supervisory authorities, as well as for implementing official requirements.

A distinction must be made between this responsibility and responsibility for criminal and administrative offences where regulations are violated. First, natural persons are liable for violations that they have committed themselves. However, employers can also be accused of organisational fault and may therefore be fined.

Civil law responsibility determines the party against which compensation claims can be asserted if health and safety regulations are violated. This responsibility is also incumbent on employers. Compensation claims of employees or third parties are usually directed against the employer. Civil law liability is supplemented by special provisions in the Social Security Code VII, which regulate who must bear liability for personal injury or damage to real property or tangible personal property caused by accidents at work.

Liability of management

The primary responsibility for health and safety at work rests with the employer. For a limited liability company, pursuant to statutory regulations, the managing directors as the representative body of the employer also hold responsibility. Consequently, supervisory authorities can issue orders against managing directors. Managing directors can commit criminal or administrative offences through occupational health and safety violations. Such offences can be punished with fines, penalties or imprisonment. However, while the employer is generally liable for accidents at work, the managing directors may also incur liability if, in particular, they have breached their duties with intent or gross negligence. In such cases they must pay compensation or be subrogated against by the employer. If they commit criminal or administrative offences they can be punished with fines, penalties or imprisonment.

Assignment of tasks and duties

Tasks and duties concerning occupational health and safety may be assigned to other persons pursuant to the statutory provisions of occupational health and safety. However, these persons assume responsibility only to the extent that the individual duty has been assigned to them. Managing directors remain liable for duties that have not been explicitly assigned.

Tasks and duties can be validly assigned to a third party only if that third party has sufficient powers. The task must correspond to the third party's position in the company. For example, responsibility for all occupational health and safety cannot be assigned to an intern or standard employee. Valid assignment of tasks also requires that the third party be reliable and have or acquired the necessary expertise and relevant experience.

Tasks should be assigned in writing. In some cases, statutory and other regulations explicitly require a written form (on paper and signed).

Management responsibility does not cease to exist upon the assignment of tasks and duties. The third party to which such tasks and duties are assigned must be selected carefully. Further, the third party must be acquainted with the necessary information. In addition, the management must supervise the third party and, if necessary, issue directives to the third party and penalise misconduct; otherwise, supervision is inadequate. If the managing directors assign tasks without subsequently supervising the third party, they will remain responsible.

If managing directors have assigned tasks to a third party, they should oblige the third party to report on those tasks regularly. If the managing directors are on the premises of the German company, they should be informed of current incidents relating to occupational health and safety and any countermeasures taken. Managing directors must respond to incidents if necessary.

If these principles (selection, assignment and supervision) are complied with, the managing directors will be released from liability.

Comment

Employers should review whether they comply with regulations and ensure that they have assigned health and safety duties validly to ensure a healthy workplace.

For further information on this topic please contact Martin Lützeler at CMS Hasche Sigle by telephone (+49 221 77 16 305) or email (martin.luetzeler@cms-hs.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.

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