Responsibility for occupational health and safety – does the mere opportunity for influence lead to employer status?

Employers in Germany have to comply with occupational health and safety regulations with respect to their “workers”. Obviously, their workers include the people they employ. But who else? Many other natural persons who do not have a contractual relationship with the employer – at least that was the interpretation of Ansbach Administrative Court (ruling of 6 May 2022 - AN 4 S 22.01071, AN 4 S 22.01073).

Ruling by Ansbach Administrative Court

The occupational health and safety authority found major shortcomings in occupational health and safety at a construction site and, after some discussion, issued an order to suspend construction, addressed to the general contractor. The general contractor raised the objection that it was not its own workers who were working on the construction site, but those of subcontractors. It claimed that therefore it was not an employer within the meaning of occupational health and safety legislation, and thus not the correct addressee of the order. Ansbach Administrative Court took a different view:

While it considered the order issued by the occupational health and safety authority to be invalid, as the authority had not sufficiently justified its discretion to select the interferer, it upheld the authority’s arguments on the merits:

“[...] In view of the purpose of the Occupational Health and Safety Act, in particular to ensure and improve the safety and health of employees at work by means of occupational health and safety measures, the concept of ‘employer’ is to be understood broadly in principle. Even the general contractor of a construction site which commissions other companies to carry out work for the individual trades is itself an employer within the meaning of the Occupational Health and Safety Act, since it, as the commissioning contractor, has initiated the employment taking place on the construction site and has the ultimate responsibility on the construction site, irrespective of the number of intermediary contractual relationships under civil law with the person ultimately employed [...]”.

Does the general contractor have all-encompassing responsibility?

This line of argument which is understandable for pragmatic reasons is not covered legally by the Occupational Health and Safety Act or other occupational health and safety regulations. Section 2(2) of the Occupational Health and Safety Act conclusively defines who is an employee for the purposes of occupational health and safety. What all the groups of people mentioned there have in common is that they have a direct contractual relationship with the company.

Such a broad interpretation as used by Ansbach Administrative Court conflicts with the recognisable intention of the legislator. In the case of temporary workers, the legislator has expressly regulated (e.g. in section 12(2) of the Occupational Health and Safety Act and section 11(6) of the Temporary Workers Act) the obligations of the hiring company. The regulations were created because temporary workers are not employed by the hiring company, and the hirer, due to the close proximity and knowledge of the hazards in its company, can protect the temporary worker much more efficiently than the temporary agency, i.e. the contractual employer.

Ansbach Administrative Court relies on the following idea, which is correct in substance: The general contractor has the ultimate responsibility on a construction site, and thus it can most effectively protect the workers of a subcontractor that only carries out a trade. However, this idea is not reflected in the Occupational Health and Safety Act. If, as did Ansbach Administrative Court, one were to disconnect the concept of “employer” from a direct contractual relationship, there would be no need for the separate regulations for temporary agency workers, which means the statutory regulations would be superfluous. However, there is no indication the legislator wished to regulate superfluous matters.

Impact in practice

If Ansbach Administrative Court’s interpretation of the term “employer” were to prevail, this would affect not only the general contractor of a construction site. Wherever workers from different employers work together outside of a temporary work situation, the problem of responsibility for occupational safety arises. This also applies, for example, to agile IT projects that have to take place on the client’s premises for reasons of IT security.

Thinking even further ahead, if a company carries out maintenance work on a client’s plant under a contract for work and services, the client might be governed not only by the general duty of care under section 618 of the German Civil Code (analogously applied), but also by all occupational health and safety regulations.

Conclusion

The ruling by Ansbach Administrative Court should encourage companies to review their own compliance with occupational health and safety regulations, especially when workers who are not temporary workers work on their premises. If a company faces action by the occupational health and safety authority even though those workers are neither its own employees nor temporary workers, it is advisable to challenge the decision in the administrative court on this basis.