Project management

Duty of care as an employer - 5 requirements you should know

How can you as an employer fulfil your duty of care towards your employees and avoid legal consequences? We explain specific measures and obligations to ensure that your working environment remains safe!
Duty of care for employers - you should know these 5 requirements

According to the law, as an employer you have a duty of care towards your employees. This includes the responsibility to ensure the physical and mental well-being of your employees. In this blog, we will look in particular at what is covered by the duty of care, how you can fulfil these obligations and what rights your employees have.

What does duty of care mean? A definition

For you as an employer, duty of care essentially means the responsibility to ensure the physical and mental well-being of your employees in the workplace. This includes aspects such as occupational safety, health protection and the prevention of social conflicts such as bullying.

If you as an employer violate this obligation, you may face legal consequences such as damages, compensation for pain and suffering and compensation. Employees have the right to refuse orders for safety reasons (e.g. increased risk of injury on unsecured scaffolding). According to § 611 BGB clear obligations for both parties arise from the employment contract. The duty of care is an essential obligation for you as an employer to ensure that the working environment is in accordance with the Occupational Health and Safety Act is safe and equal.

Examples Employer's duty of care:

  • As a building contractor, you provide helmets on the construction site for your employees to wear.
  • Smoking is strictly prohibited indoors at the workplace.
  • In cases of bullying, you take over the mediation between the parties or arrange for an expert to do this for you.
  • As an employer, you pay attention to legally prescribed break times and require your employees to adhere to them.

As an employer, you have these duties of care

Various regulations, including the German Civil Code (BGB), labour law and in particular the Occupational Health and Safety Act set out clear regulations and protective measures that you as an employer must observe. The physical health and psychological integrity of your employees are the top priority. As a line manager, you are therefore obliged to introduce and regularly review appropriate measures. You should observe the following points in detail:

  • Working time recording: Since September 2022, the Obligation to record working hours.
  • Preventive safety measures: Implement necessary protective measures to ensure the health and safety of your employees. Store documents for the safety training of your employees in a central location that is accessible to everyone.
  • Workplace design: As an employer, you are obliged to set up workplaces appropriately and keep them in a safe condition.
  • Conflict resolution: As an employer, you have a duty of care to clarify conflicts, avoid discrimination and, if necessary, take appropriate action.
  • Employee rights: It is important to respect the rights of your employees and take them into account accordingly.

Compliance with these duties of care is not only required by law, but also helps to create a safe, healthy and fair working environment. You should consider these 5 duties:

5 duties of care that employers should be aware of

1. duty of care health protection

As an employer, you have a duty to create a safe working environment and avoid unnecessary hazards. The organisation of work should be as low-risk as possible, with employees who work with chemicals, for example, being provided with appropriate protective measures such as respiratory masks - in accordance with § 3a Workplace Ordinance.

According to § 6 Occupational Health and Safety Act the duty of care requires you as an employer to assess the work situation on site and document your decisions to comply with all regulations. If you hire new employees, the following applies § 12 Occupational Health and Safety ActBefore starting a job, you must inform your employees about possible sources of danger.

Your employees come to work sick? If you feel that the employee is unable to work effectively and safely due to their state of health, you have the right and the duty to send them home or to the doctor.

According to § 5 ArbSchG As an employer, you must check the conditions and take measures to protect every employee from hazards in the best possible way. As an employer, you must finance the provision of protective clothing. You are also obliged to regularly review all safety measures and adapt them if necessary.

For pregnant women, Minors and Severely disabled persons there is an increased duty of care for employers. For example, these groups are not allowed to work overtime. This is regulated in § 4 Maternity Protection Act and § 8 Youth Labour Protection Act. In addition, pregnant women are entitled to Time off for medical appointmentseven during working hours.

Maintaining the health of your employees also includes the opportunity to relax. As an employer, you are obliged to grant holidays and protect employees from overwork - see Federal Holiday Act. Although holiday planning should be adapted to the company structure, employees have the right to take their holiday in the year of validity. In particular, employees with school-age children have a legitimate interest in taking holiday during the school holidays.

2. duty of care working environment

Before starting work, you must prepare the workplace in accordance with § Section 3 of the Workplace Ordinance in such a way that your employees do not suffer any harm. This regulation includes safety measures and regular maintenance of the environment. For example, you should replace defective desk chairs that are not ergonomic.

For each workplace there is the Employer's duty of care in terms of sufficient lighting, ventilation and an appropriate temperature. It is also important to protect non-smokers from tobacco smoke, both in the workplace and in break and standby rooms. In most cases - apart from certain exceptions such as in manufacturing - you should ensure that the Workplaces a look outside enable.

Do your employees work 100 per cent from home? Here too, you have a duty of care. The teleworking workplace must be checked for potential hazards, which you as the employer must eliminate together with your employee. Make sure there is sufficient light, ventilation and a controlled temperature at the workplace. You should also keep an eye on the issue of social isolation and ensure that your remote team socialises regularly. How efficient teamwork can also work in the home office, you can read here.

3. duty of care mental health

In working environments in which people work together, social conflicts can sometimes arise that can be resolved. Negative impact on mental health can have an impact. In this context, you as an employer have a duty to resolve these conflicts, particularly in the context of the General Equal Treatment Act.

This requires equal treatment of all employees, without discrimination on the basis of origin, race, gender, age, disability, ideology or sexual orientation. This regulation applies both to existing employment relationships and to criteria for new hires. You can read more about this topic in our Blog article on diversity management read more. From a certain company size, it can be advantageous to train your HR department in this respect. This means that the barrier for your employees is not quite so great and they are more inclined to discuss problems with the HR department than with superiors.

Social conflicts can also take other forms, such as intimidation, hostility, insults or sexual harassment. In such cases, you have an obligation to investigate the incidents and determine appropriate consequences for the perpetrators. Bullying should be prevented by you as an employer.

The personal rights of each individual are also particularly protected in professional life (Art. 2 Basic Law). Unless there are good reasons for not doing so, an employee has the right to dress according to their own taste, for example. However, you can prescribe appropriate clothing for direct customer contact.

The right to privacy also exists in the workplace. Permanent surveillance at the workplace or the tracking of activities on the PC are not permitted.

4. duty of care in the event of termination

Your duty of care as an employer does not automatically end with the end of an employment relationship. After a termination, there are other obligations that you should keep in mind:

  • Time off for job interviews: During the notice period, you can give departing employees the opportunity to prepare for new career prospects. Requesting time off for job interviews is in your employee's favour.
  • Clarification of consequences: In the event of dismissal, you as an employer must inform your employee that deductions may be made from social benefits.
  • Right to a reference: Former employees have the right to a § Section 109 of the Industrial Code Entitlement to a favourable reference that presents professional qualifications and performance positively and fairly.
  • Duty of consideration: Even after leaving the company, you have a duty of consideration - in accordance with § Section 241 (2) BGB. The presence on your own website can lead to confusion for the new employer. Make sure that the employee in question can no longer be found on your company's website after their last day of work.

Duties of care not only help to maintain the professional relationship between the former employee and your company, but can also have a positive impact on your company's reputation in the business world.

5. duty of care for employees

Your obligation as an employer to take care of your employees' indispensable or work-related items extends to the following aspects:

  • Storage option: As a Employer you provide a storage facility for personal items such as purses or jackets. This allows your employees to keep their belongings safe, whether during a meeting or on the construction site.
  • Work-related items: Your duty of care as an employer also extends to work-related items, including provided learning materials or other utensils that are necessary for work.
  • Data protection: Personal data, such as for example application documentsare considered your employees' property worthy of protection. As an employer, you are obliged to treat them confidentially and protect them appropriately.
  • Car parks in winter: If your company provides car parking spaces for employees, you are in the Winter months You are obliged to clear these and grit them in an environmentally friendly manner. You must also ensure that potential hazards, such as falling branches in windy weather, are removed. In the event of damage, your company and not the individual employee is liable.

Breach of the duty of care: these are the consequences

In the event of a breach of the duty of care by the employer, for example in the event of accidents at work or inadequate intervention against bullying, you are liable! Possible consequences include damages, compensation for pain and suffering and compensation payments. Your employees have the following rights if you do not fulfil your duty of care as an employer:

  • Refrain from any activity: According to § SECTION 275 BGB employees are authorised to refuse dangerous tasks. In this case, they may stop work if they are made aware of any danger. The decision must not affect pay.
  • Leave the place of danger: In the event of imminent danger (e.g. due to toxic vapours in the air that occur suddenly without appropriate protective equipment being available), employees have the right to leave the workplace and protect themselves.
  • Demand improvement: If you violate your duty of care as an employer, your employees can take legal action for an improvement in case of doubt. This is because the duty to take protective measures is set out in § Section 618 (1) BGB regulated.
  • Involve the supervisory authority: In addition to legal proceedings, your employees can report your company to the competent supervisory authority to draw attention to irregularities.
  • Last resort: dismissal: If there is no prospect of improvement, employees have the right to resign in accordance with § 273 BGB the right to terminate the contract without notice.

Fulfilling your duty of care as an employer

As an employer, you are obliged to record and document the working hours of your employees. With ZEP, we provide you with a tool that supports you in complying with court orders. Recording working hours may involve a certain amount of effort - depending on the recording method - but it also has a number of advantages. By using a time recording system such as ZEP, which you can also use to plan your holidays, you save a considerable amount of administrative work.

The basic purpose of the obligation to record working hours is to ensure that your employees do not exceed the permitted working hours. As part of your duty of care as an employer, time recording also shows you when you need to take action and intervene. Because: The individual overtime account in the ZEP Overtime, Absence & Leave Module shows you exactly whether the legally prescribed breaks and rest periods are actually being observed.

With ZEP, you can record overtime properly and have a quick overview of all hours worked. With the holiday module, you can also relax and take time off. View remaining holiday days and manage them conveniently in the calendar. And with the Document management module you also have a barrier-free place to store all documents for safety training, etc. directly in ZEP. directly in ZEP. If you do not yet use ZEP, you can download our 30 days trial version free of charge & without obligation.

Tanja Hartmann CEP

Tanja Hartmann

Content Marketing Manager at ZEP

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