Transfer of entrepreneurial duties

If you, as a line manager, issue instructions without the express instruction of the management or your direct superior, this is an offence. Management without mandate (GoA). This can have consequences under both labour law and liability law.

Possible risks:

• Consequences under labour lawUnauthorised instructions may result in a warning or, in the event of recurrence, dismissal.

• Liability for damagesIf your instructions cause damage, you may be held personally liable.

• Violations of operational proceduresUncoordinated actions can undermine existing security and organisational structures.

• Misjudgement of dangersWithout a sound basis for decision-making, there is a risk of taking the wrong measures.

Practical examples:

• Occupational safetyA shift supervisor instructs employees not to wear personal protective equipment in order to speed up work. If an accident occurs, he faces consequences under labour law and possible liability for the damage.

• Environmental protectionA department manager orders the unauthorised disposal of hazardous substances without taking the prescribed safety precautions. This results in environmental pollution, which can lead to criminal prosecution.

• Operating procedureA team leader decides to change a production line without consultation, which leads to delays and financial losses. The company can hold him liable for the damage caused.

How can this be avoided?

• Clear delegation of entrepreneurial dutiesWritten assignment of responsibility ensures clear responsibilities and reduces uncertainty.

• Regular training coursesTraining courses allow you to expand your skills and keep up to date with current company regulations.

• Communication with the management levelCoordinate decisions with your superiors to ensure legal certainty.

Unauthorised instructions should only be given in Acute hazardous situations may be issued if immediate action is required to avert damage. In all other cases, it is advisable to consult with the supervisor.

An employer is not in a position to perform all duties himself, especially in large organisations. This also applies to company managers. For this reason, the legislator in § Section 13 (2) ArbSchG an option to delegate tasks.

"The employer may authorise reliable and competent persons in writing to carry out the tasks incumbent upon him under this Act on his own responsibility."

There is no automatic obligation, as this paragraph expressly states "may". However, an employer rarely has a choice, as Section 3 ArbSchG states that the employer has an organisational obligation.

See also the draft Introductory Act to the Criminal Code (EGStGB), Bundestag printed paper 07/550 of 11.05.73: "In the modern economy and administration based on the division of labour, the owner of a business must necessarily make use of the assistance of other persons who fulfil these duties in his place on their own responsibility; the actual circumstances do not allow any other possibility."

This generally makes it more difficult for the selected authorised representatives to Transfer of entrepreneurial duties effectively or to reject the transfer of duties altogether.

Section 13(1) of the Occupational Health and Safety Act states: "In addition to the employer, the following persons are responsible for fulfilling the obligations arising from this section

1. its legal representative,

2. the authorised representative body of a legal entity,

3. the partner authorised to represent a commercial partnership,

4. persons entrusted with the management of a company or business within the scope of the tasks and powers assigned to them,

5. other persons obliged under paragraph 2 or under an ordinance issued on the basis of this Act or under an accident prevention regulation within the scope of their duties and authorisations."

It is important to note that only administrative responsibility is addressed here. Civil and criminal liability must be separated from this.

Section 13 of DGUV Regulation 1 expressly mentions authorisations in addition to duties. In addition, according to the wording of this accident prevention regulation, the authorised representative must sign the authorisation. The authorised representative must also receive a copy.

"The employer may authorise reliable and competent persons in writing to carry out the tasks incumbent upon him under accident prevention regulations on his own responsibility. The authorisation must specify the area of responsibility and powers and must be signed by the authorised person. A copy of the authorisation must be given to him."

Authorised persons can be Waste management officer, company doctor, biosafety officer, fire safety officer, fire protection officer, data protection officer, first aider, women's health officer, hazardous goods officer, water protection officer, hygiene officer, immission control officer, laser protection officer, quality management officer, accident prevention officer, radiation protection officer, environmental management officer (not exhaustive)

In its regulation 100-001 "Principles of prevention", the DGUV offers a sample document on the "Transfer of employer obligations", which explains the requirements of DGUV regulation 1 in more detail. However, it should be noted: The document has no presumption of conformity and offers only limited assistance in operational practice. One key point is missing, namely the provision of sufficient resources - be it in terms of material resources, time, financial resources or personnel.

There is a distinction between original managerial duties and transferable entrepreneurial duties. The original duties of managers are

• Enforce instructions.
• Ensure health and safety in the workplace.
• Control.

A question that is always asked - whether by employers or works and staff councils: Which duties may be transferred and why?

The answer: all the obligations set out in Section 2 of the Occupational Health and Safety Act (ArbSchG).

The "Guideline on the organisation of occupational health and safety" of the Joint German Occupational Health and Safety Strategy (GDA) contains 15 assessment elements for supervisors; the first element deals with responsibility and delegation of tasks and lists the following assessment criteria:

• Responsibilities and procedures for the systematic transfer of tasks, duties and competences for occupational health and safety are regulated.
• Managers are aware of their health and safety obligations.
• Employer obligations have been transferred in writing.
• The job descriptions are clearly defined. The tasks of the individual players have been harmonised. The selection of function holders and managers is coherent.
• The authorised representatives have sufficient time to perform their occupational health and safety duties.
• Sufficient resources (material, time, financial and personnel) are provided.

Source: https://t1p.de/wynyn (last checked on 19.01.2025)

The evaluation should ultimately be based on a traffic light system:

GREEN: The areas of responsibility and duties of managers and functionaries in occupational health and safety as well as the required competences were generally defined specifically and comprehensively. Where employer duties were assigned, this was done in writing in accordance with Section 13 (2) ArbSchG.

YELLOW: The areas of responsibility and tasks of managers and functionaries in occupational health and safety as well as the required competences were only partially defined. The areas of responsibility are largely undefined. Where employer duties were delegated, this was not or only partially done in writing within the meaning of Section 13 (2) ArbSchG.

RED: There is no recognisable definition of the areas of responsibility and duties of managers and functionaries in occupational health and safety.

• Ensure compliance with regulations

  • Implement legal requirements (e.g. occupational health and safety, waste, water, immission control legislation) and company regulations (e.g. fire safety regulations, operating and procedural instructions).
  • Regular, random checks and documentation of compliance.

• Carry out hazard and environmental assessments

  • Create, document and update risk assessments with the involvement of employees.
  • Assess environmental risks and define measures to minimise them.
  • Comply with reporting obligations and inform superiors/management if necessary.
  • Check the effectiveness of protective measures.

• Create and train operating instructions

  • Create operating instructions for machines, hazardous substances and systems.
  • Instruct employees before starting work and annually.
  • Check application and implementation regularly and as required.

• Provision and testing of necessary work equipment

  • Procure and provide the necessary resources (e.g. personal protective equipment, first aid material, environmental protection agents).
  • Provide accompanying documents in German.
  • Ensure regular, expert testing of the funds.
  • Check use by employees in accordance with instructions.

• Ensure rectification of defects

  • Immediately rectify or forward any defects found in order to initiate measures to remedy them.

• Keep inspection logbooks for systems subject to mandatory inspections

  • Maintain and update test logbooks for relevant equipment and systems.

• Ensure noise and vibration protection

  • Create a noise and vibration register.
  • Implement measures to minimise noise and vibration.

• Maintain explosion protection documentation

  • Create and regularly update explosion protection documentation.

• Comply with working time regulations

  • Ensure employees' working, driving and rest times.

• Comply with load securing and dangerous goods regulations

  • Ensuring proper load securing and compliance with dangerous goods regulations.

• Observe employment restrictions

  • Ensure compliance with legal requirements on employment restrictions.

• Organise preventive measures for employees

  • Document regular information on desired and available provision.
  • Carry out mandatory precautions in good time (before starting work, at regular intervals, before leaving).

• Check health suitability

  • If there are doubts about the health suitability of individual employees, arrange for appropriate examinations.

• Appoint and train safety officers

  • Appoint, train and educate safety officers in accordance with SGB VII.

• Ensure first aid measures

  • Appoint first aiders and provide them with regular training.
  • Ensure effective first aid.

• Appoint and train fire safety assistants

  • Appoint fire safety assistants and ensure regular training and further training.

• Organise evacuation and evacuation helpers

  • Appoint and train evacuation assistants.

• Report accidents and environmental incidents

  • Pass on information on accidents or environmental incidents to the relevant authorities without delay.

• Prevention of alcohol and drug consumption

  • Ensure that employees do not consume intoxicating substances that endanger themselves or others.

• Prevention of discrimination and bullying

  • Implement measures against bullying and discrimination (race, gender, religion, disability, age, sexual identity) and prevent offences.

• Instruct and monitor external company managers

  • Instruct those responsible for external companies at the workplace.
  • Identify mutual hazards, define and document protective measures.
  • Check implementation of the measures and accept services (see DGUV Information 215-830).

The sample text above is an example of a selection of tasks. However, this list is not exhaustive and should be adapted according to the specific operational requirements. Some tasks, such as the creation of a noise/vibration register or a noise/vibration reduction programme, may not be relevant for a company and should be deleted in such cases. As environmental law tasks must also be taken into account and occupational health and safety law often overlaps with Environmental law and dangerous goods legislation, the list also includes relevant points from these areas of law in addition to the labour-related aspects.

In § Section 13 of DGUV Regulation 1 explicitly mentions powers in addition to duties.

The employer may authorise reliable and competent persons in writing to carry out the tasks incumbent upon him under accident prevention regulations on his own responsibility. The authorisation must specify the area of responsibility and powers and must be signed by the authorised person. A copy of the authorisation must be given to him.

In order to effectively counteract a selection fault, the employer must check whether the intended persons are reliable and competent before transferring duties.

DGUV Rule 100-001 explains the two terms reliability and expertise.

Reliability and expertise

Reliable are the persons designated for the transfer of duties if it can be expected that they will carry out the occupational health and safety tasks with due care.

Expert are the persons designated for the delegation of duties who have the relevant expertise and practical experience to carry out the tasks incumbent upon them properly.

It is important to know the necessary legal requirements and other obligations that apply to the respective organisational area. These include not only laws, ordinances and regulations, but also instructions and guidelines, standards, permits, licences, contracts, protocols and more. These obligations are usually clearly documented in a legal and authorisation register.

This section explicitly emphasises that a risk assessment is carried out and protective measures are defined. However, the effectiveness check of the implemented measures is often overlooked. Without the result of this check, the risk assessment remains incomplete.

The GTC clause check ensures that contractual clauses for the transfer of entrepreneurial obligations are legally effective and fair. Pursuant to Section 307 of the German Civil Code (BGB), general terms and conditions must not unreasonably disadvantage the contractual partner. In the context of the delegation of duties, this means that the delegated responsibilities must be clear, understandable and practicable.

Clauses that make managers or employees liable for obligations without providing them with the necessary decision-making powers and resources are particularly ineffective. Equally critical are surprising or unclear provisions that circumvent essential legal requirements, for example from the Occupational Health and Safety Act or DGUV Regulation 1.

To ensure that the delegation is legally effective, employers should formulate the clauses transparently, refrain from making blanket assumptions of liability and ensure that the delegatee can actually fulfil the delegated tasks. Careful drafting protects against liability risks and ensures legally compliant delegation.

According to the prevailing view, the signature of the works or staff council is not mandatory, as the transfer is an individual measure.

Employers who value fairness and transparency also obtain confirmation from the works council or staff council. This is to ensure that social adequacy is guaranteed in the selection process. Social adequacy refers to the fact that the selection criteria for the transfer are fair, comprehensible and socially balanced.

Obtaining confirmation can strengthen trust between the employer, works/staff council and the employees concerned. It signals fairness and transparency in dealing with personnel measures.

No, the confirmation is not legally required and is not binding. Rather, it serves to make the process transparent and avoid possible misunderstandings.

No, a specialist for Occupational safety (SIFA) may not, as a rule, be assigned any employer duties in occupational health and safety. The SIFA assumes an advisory and supportive role and should be independent of the employer.

Reasons for non-transferability

• Separation of functions: The Occupational Health and Safety Act (ASiG) provides for a clear separation between the role of the employer and the labour inspectorate. Safety specialist before.
• Freedom from instructions: The SIFA must remain free of professional directives in order to be able to carry out its tasks independently.
• Counselling function: SIFA's main task is to advise employers on occupational health and safety issues.

Exceptions and special features

Below the level of the plant manager, company managers can act partly as safety experts and partly as employer functionaries.

A senior safety expert can be given the right under their employment contract to make decisions on their own responsibility in the implementation of occupational health and safety as long as the employer's position as guarantor and the SIFA's freedom to issue instructions are maintained.

It is important to note that the transfer of employer duties in occupational health and safety is possible in principle, but not to the SIFA. Instead, these duties can be delegated to other reliable and competent persons, such as managers or, in certain cases, even to external service providers (no SIFA).