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.
Table of contents - What you can expect:
Duty of care for employers
Breach of the duty of care
Comply with duty of care
Special cases
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 jobs 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 safe and equal in accordance with the Occupational Health and Safety Act.
👷🏼 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 encourage your employees to comply with them.
As an employer, you are obliged to § 618 BGB The employer is obliged to organise working conditions in such a way that the health and life of its employees are protected. This obligation is concretised by various laws and regulations, such as the Occupational Health and Safety Act and the Maternity Protection Act. Local and cultural circumstances as well as technical developments can further influence the specific requirements.
Various regulations, including the German Civil Code (BGB), labour law and in particular the Occupational Health and Safety Act, set out clear rules 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:
Compliance with these duties of care is not only required by law, but also helps to create a safe, healthy and fair working environment. These 5 Duties you should take into account:
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, employers have an increased duty of care. 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 appointments, even 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.
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 every workplace, the employer has a duty of care with regard to 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 workplaces offer a view to the outside.
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. You can find out how efficient teamwork can also work in the home office here read here.
In working environments where people work together, social conflicts sometimes arise that can have a negative impact on mental health - keyword: Burnout. In this context, you as an employer have a duty to resolve these conflicts, particularly within the framework 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 the Diversity management read up.
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.
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:
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.
Your obligation as an employer to take care of your employees' indispensable or work-related items extends to the following aspects:
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 rightsif you do not fulfil your duty of care as an employer:
| Refrain from activity | According to § 275 BGB, employees are entitled to refuse dangerous tasks. In this case, they may stop work if they are made aware of the danger. The decision must not have any influence on pay. |
| Leave the danger zone | In the event of immediate danger (e.g. due to toxic vapours in the air that occur suddenly without the appropriate protective equipment being available), employees have the right to remove themselves from 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 regulated in Section 618 (1) BGB. |
| Involve supervisory authority | In addition to legal proceedings, your employees can report your company to the competent supervisory authority in order to draw attention to irregularities. |
| Last resort: cancellation | If there is no prospect of improvement, employees have the right to resign without notice in accordance with Section 273 BGB. |
As an employer, you are obliged to record and document the working hours of your employees. With ZEP, we offer you a tool that supports you in complying with court orders and the planned Law on the recording of working hours supported. Although recording working time - depending on the method - can involve a certain amount of effort, it has considerable advantages. With a time recording system such as ZEP, which also facilitates your holiday planning, you save significant administrative effort. ZEP helps you to ensure that your employees do not exceed the authorised working hours, Statutory break times and shows you when action is required.
The ZEP module Overtime, Absences & Holidays shows you exactly whether the legally prescribed breaks and rest periods are being observed. With ZEP, you can record overtime properly and have a quick overview of all hours worked at all times. In addition, the holiday module allows you to conveniently manage remaining holiday days in the calendar. The ZEP Document management offers you a barrier-free place to store all important documents, such as safety training, directly in ZEP. If you do not yet use ZEP, you can download our 30 days trial version free of charge and without obligation.
If obligations are not regulated in detail by law, it is up to the employer to decide how to implement them. The interests of both parties must be carefully weighed up. The employee must accept reasonable risks that are necessary for the economic operation of the company, while at the same time the employer is obliged to take protective measures and promote the health of employees. Open communication and simple measures can often resolve conflicts and lead to healthier and more productive employees in the long term.
The employer's duty of care for its civil servants is enshrined in constitutional law and is considered a traditional principle of the civil service with constitutional status. According to Section 78 BBG and Section 45 BStG, the employer is obliged to ensure the welfare of civil servants and their families, both during and after the termination of their civil servant status. This duty of protection applies to all civil servants, regardless of the type of civil service relationship.
In this way, you as an employer fulfil your duty of care even in special cases:
Sick employees can be a danger to themselves and their colleagues, as their illness can worsen and infect others. Managers should send sick employees to the doctor and then home, especially in physically demanding or dangerous jobs and in areas where the Infection Protection Act applies. This ensures that the employee arrives safely and that everyone's health is protected.
In accordance with Section 2 of the Employee Protection Act, employers are obliged to protect their employees from intentional, sexually explicit behaviour that violates dignity in the workplace. This requires labour law and personnel management measures such as warnings, reprimands, transfers or dismissals. The same applies to bullying, although it is difficult to prove and is perceived individually. Nevertheless, employers must not look the other way, but must actively take action against bullying in order to fulfil their duty of care.
The so-called travel risk lies with the employee, who must ensure that they arrive at work on time, even taking into account events such as traffic jams, traffic accidents or storms. In such cases, the employer is generally not obliged to pay for the loss of working hours. Nevertheless, the employer's duty of care requires them to avoid unreasonable burdens. This can manifest itself in the form of cost sharing for alternative means of transport or the option of working from home during such events.
Employers are obliged to protect the mental health of their employees, especially in jobs with high levels of pressure such as pressure to perform or stress. Managers play a decisive role by recognising signs of mental stress, holding personal discussions and offering support through prevention or therapy programmes if necessary. A good working atmosphere and supportive measures help to avoid long periods of sick leave and promote employee motivation.
The employer's duty of care towards its employees extends not only to physical health, but also to mental health. Particularly in working environments with high performance pressure and stress, it is crucial that managers recognise signs of mental stress at an early stage and act accordingly.
Through preventative measures, such as an appreciative working atmosphere and targeted support programmes, companies can not only promote the well-being of their employees, but also build motivated and healthy teams in the long term.
Compliance with the duty of care therefore not only contributes to legal compliance, but also makes a significant contribution to the long-term health of the company.
The Duty of care of an employer requires that it protects the general welfare of its employees, including their physical and mental health through safe working conditions and legal standards. The Duty of care is a more specific part of the duty of care, which obliges the employer to identify potential hazards in the workplace and to minimise or eliminate them through appropriate safety measures.
The employer's duty of care includes responsibility for preventive measures in the area of occupational health and safety, in particular through occupational health care in accordance with the Occupational Health Care Ordinance (ArbMedVV). This ordinance distinguishes between mandatory, optional and desired preventive care and specifies how examinations and measures must be carried out in accordance with other ordinances, such as the BioStoffV.
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