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 emotional well-being of your employees. In this blog, we will focus in particular on everything covered by the duty of care, how you comply with 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 psychological well-being of your employees at work. This includes aspects such as occupational safety, health protection and the prevention of social conflicts such as bullying.
If you violate this obligation as an employer, there may be legal consequences such as compensation, compensation and compensation. Employees have the right to refuse orders for safety reasons (e.g. increased risk of injury on unsecured scaffolding). In accordance SECTION 611 BGB There are clear obligations for both parties from the employment contract. The duty of care is an essential duty for you as an employer, which is intended to ensure that the working environment is safe and equal in accordance with the Occupational Health and Safety Act.
Examples of employer welfare obligations:
👷🏼 As a building contractor, you provide helmets on the construction site to be worn by your employees.
🚭 There is a strict smoking ban indoors at work.
🤝🏽 In cases of bullying, you will mediate between the parties or arrange for an expert to do this for you.
💤 As an employer, you pay attention to legally required break times and ask your employees to comply with them.
Employer's Duty of Care: Insights into Legal Regulations
As an employer, you are in accordance with SECTION 618 BGB Committed to designing working conditions in such a way that the health and life of your employees are protected. This obligation is specified in various laws and regulations, such as the Occupational Health and Safety Act and the Maternity Protection Act. Local and cultural conditions as well as technical developments can further influence specific requirements.
As an employer, you have these duties of care
Various regulations, including the Civil Code (BGB), employment law and in particular the Occupational Health and Safety Act, set out clear regulations and protective measures that you as an employer must comply with. The physical health and psychological integrity of your employees are paramount. As a supervisor, you are therefore required to introduce appropriate measures and to regularly review them. In detail, you should consider the following points:
Time Tracking: Since September 2022, there has been a mandatory requirement for the recording of working hours.
Preventive Safety Measures: Implement necessary protective measures to ensure the health and well-being of your employees. Store documents related to employee safety training in a central, accessible location for all.
Workplace Design: As an employer, you are required to provide appropriate workplace arrangements and maintain 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 and consider the rights of your employees.
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 the following 5 duties:
1. Duty of Care Health Protection
As an employer, you have a duty to create a safe working environment and avoid unnecessary risks. The design of work should be as low-risk as possible, with employees who work with chemicals, for example, receiving appropriate protective measures such as respirators — in accordance with Section 3a Workplace Ordinance.
Loud Section 6 Occupational Health and Safety Act The Duty of Care requires you as an employer to assess the local work situation and document your decisions to comply with all regulations. When you hire new employees, the following applies Section 12 Occupational Health and Safety Act: Before taking on a job, you must inform your employees about possible sources of danger.
Do your employees come to the company sick? If you feel that the employee is unable to work effectively and safely due to their health status, you have the right and duty to send that employee home or to the doctor.
In accordance Section 5 ArbSchG As an employer, you must review the conditions and take measures to protect every employee from risks in the best possible way. As an employer, you must finance the provision of protective clothing. You are also required to regularly review all security measures and adjust them as necessary.
For pregnant women, Minors and severely disabled people have an increased duty of care for employers. For example, these groups are not allowed to work overtime. This is regulated in Section 4 Maternity Protection Act and Section 8 Youth Employment 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 required to grant leave and protect employees from being overworked — see Federal Vacation Act. Although vacation planning should be adapted to the company structure, employees have the right to start their vacation in the year in force. In particular, employees with school-age children have a legitimate interest in taking vacation during school holidays.
2. Duty of Care Working Environment
Before starting work, you must check the workplace in accordance with Section 3 of the Workplace Ordinance Set it up so that your employees do not suffer any damage. This regulation includes safety measures and regular maintenance of the environment. For example, you should replace broken desk chairs that are not ergonomic.
For every workplace, the employer has a duty of care with regard to adequate lighting, ventilation and an appropriate temperature. It is also important to protect non-smokers from tobacco smoke, both at work and in break and standby rooms. In most cases — apart from certain exceptions such as in manufacturing, you should make sure that the workplaces provide a view of the outside world.
Do your employees work 100 percent from home? Here, too, you have a duty of care. The teleworking place must be checked for potential risks that you, as an employer, must eliminate together with your employee. Make sure that there is sufficient light, ventilation and a controlled temperature in the workplace. You should also keep an eye on the issue of social isolation and ensure that your remote team is in regular contact with each other. How efficient teamwork can also work in the home office, you can Read it here.
3. Duty of care mental health
In work environments where people work together, there are also social conflicts that can have a negative impact on mental health — keyword: burnout. In this context, as an employer, it is your duty to resolve these conflicts, in particular within the framework of the General Equal Treatment Act.
This requires equal treatment of all employees, without discrimination based on origin, race, sex, 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 up.
Social conflict can also take on other forms, such as intimidation, hostility, insults, or sexual harassment. In such cases, you have the 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 every individual are also particularly protected in professional life (Art. 2 Basic Law). Unless there are valid reasons to the contrary, an employee has the right, for example, to dress according to his own taste. However, if you have direct customer contact, you can prescribe appropriate clothing.
There is also the right to privacy in the workplace. Permanent monitoring at work or tracking activities on the PC is not permitted.
4. Duty of Care in Case of Dismissal
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 an eye on:
🕒 Release for Job Interviews: During the notice period, you can provide outgoing employees with the opportunity to prepare for new career opportunities. A requested release for job interviews supports your employee in this process.
⚠️ Explanation of Consequences: When terminating an employee, you, as an employer, must inform them that there may be deductions in social benefits.
✅ Right to a Job Reference: Former employees are entitled to a favorable job reference according to § 109 of the German Trade Regulation Act (GewO), which should positively and fairly reflect their professional qualifications and performance.
🌐 Duty of Consideration: Even after leaving the company, you still have a duty of consideration according to § 241 Abs. 2 of the German Civil Code (BGB). Having the employee’s presence on your company website could lead to confusion with the new employer. Ensure that the employee is no longer listed on your company’s website after their last working day.
The 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 Objects of Employees
Your duty as an employer to take care of your employees' essential or work-related items covers the following aspects:
Storage Facilities: As an employer, you provide storage options, such as for personal items like wallets or jackets. This allows your employees to securely store their belongings, whether during a meeting or on a construction site.
Work-Related Items: Your duty of care as an employer extends to work-related items, including provided learning materials or other tools necessary for the job.
Data Protection: Personal data, such as application documents, is considered protected property of your employees. As an employer, you are obligated to treat this information confidentially and safeguard it appropriately.
Winter Parking: If your company provides parking for employees, you are required to clear the parking spaces in the winter months and spread environmentally friendly de-icing materials. Additionally, you must ensure that potential hazards, such as falling branches during windy weather, are removed. In case of damage, your company, not the individual employee, is liable.
Violation of duty of care: These consequences are imminent
In the event of a breach of the duty of care by the employer, for example in the event of work accidents or insufficient action against bullying, you are liable! Possible consequences include compensation, compensation and compensation payments.
Yours Employees have the following rights if you do not meet your duty of care as an employer:
Fulfill your duty of care: This is how ZEP can help you in your company!
As an employer, you are required to record and document the working hours of your employees. With ZEP, we offer you a tool that helps you comply with court decisions and when planning Working Time Recording Act supports. Although recording working time — depending on the method — can involve a certain amount of effort, it has significant benefits. With a time recording system such as ZEP, which also makes your vacation planning easier, you save significant administrative work. ZEP helps you to ensure that your employees do not exceed the permitted working hours Statutory break times comply and show you when action is needed.
The ZEP module Absences & Overtime shows you exactly whether the legally required breaks and rest periods are being observed. With ZEP, you correctly record overtime and have a quick overview of all hours worked at any time. In addition, the vacation module allows you to easily manage remaining vacation 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.
Balancing the Interests of Employer and Employee
Unless duties are regulated in detail by law, it is up to the employer's discretion how to implement them. In doing so, the interests of both parties must be carefully considered. The employee must accept reasonable risks that are necessary for the economic operation of the company, while at the same time the employer is required to take protective measures and promote employee health. Open communication and simple measures can often resolve conflicts and lead to healthier and more productive employees in the long term.
Civil Service Officials: The Role of the Duty of Care
The Employer's Duty of Care for His Officials is enshrined in constitutional law and is regarded as the established principle of professional civil service with constitutional status. According to Section 78 BBG and Section 45 BStG, the employer is obliged to ensure the well-being of civil servants and their families, both during and after termination of the civil service relationship. This obligation of protection covers all civil servants, regardless of the nature of their employment relationship.
Duty of Care in Special Cases: What Employers Need to Know
This is how you, as an employer, meet your duty of care even in special cases:
Duty of Care in Case of Acute Illness
Ill employees can pose a risk to themselves and their colleagues as their illness worsens and can infect others. Particularly during physically demanding or dangerous activities and in areas where the Infection Protection Act applies, the manager should send sick workers to the doctor and then home. This ensures that employees arrive safely and that everyone's health is protected.
Dealing with Bullying and Sexual Harassment
According to Section 2 of the Employment Protection Act, employers are required to protect their employees from intentional, sexually determined conduct that violates dignity in the workplace. This requires employment and personnel measures such as reminders, warnings, transfers or dismissals. The same applies to bullying, although it is difficult to prove and is perceived individually. However, employers must not look the other way, but must actively combat bullying in order to meet their duty of care.
What applies in cases of force majeure such as storms & natural disasters?
The so-called road risk lies with the employee, who must ensure that they get to work on time, even taking into account events such as traffic jams, traffic accidents or severe weather. In such cases, the employer is generally not obliged to pay for lost working hours. Nevertheless, the employer's duty of care requires us to avoid unreasonable burdens. This can be manifested through cost sharing for alternative means of transportation or the ability to work from home during such events.
Duty of Care in the Event of Mental Illness
Employers are required to protect the mental health of their employees, particularly when working with high demands such as pressure to perform or stress. Managers play a decisive role by identifying signs of psychological distress, having personal conversations and, where appropriate, offering support through prevention or therapy programs. A good working environment and supportive measures help to avoid long absences of illness and to promote employee motivation.
Conclusion
The employer's duty of care towards its employees extends not only to physical health but also to mental health. Particularly in work environments with high performance pressure and stress, it is crucial that managers recognize signs of psychological stress at an early stage and act accordingly.
Compliance with the duty of care therefore not only contributes to legal compliance, but is also a significant contribution to long-term corporate health.
