With HSE 4.0 you can train your managers easily and in a legally secure manner on what their...Rights and obligations in occupational safety are. When you transfer duties, there are a few things to consider.
Delegate occupational health and safety correctly – or too many cooks will spoil the broth
16.02.2023
The employer is responsible for occupational safety. In practice, however, the option available under Section 13 Paragraph 2 of the ArbSchG is often used to commission reliable and expert people in writing to carry out tasks incumbent on the employer under the Occupational Safety and Health Act on their own responsibility. Responsibility under occupational health and safety law is then transferred to the appropriate extent to this occupational health and safety representative, whereby the duty of control always remains with the employer.
However, mistakes often occur in operational practice when transferring duties. In particular, a “formal commission” is not enough, as a decision by the Higher Regional Court (OLG) Hamm (decision of July 13, 2021 - I-7 U 41/20) makes clear again.
Decision of the OLG Hamm
In the case in question, the company did not bother to appoint one or more employees as occupational safety representatives based on their expertise and reliability (Section 13 Para. 2 ArbSchG), but instead simply appointed all journeymen as team leaders in accordance with the general job description should be responsible for their own safety and that of their employees. It's not that easy, as the Hamm Higher Regional Court ruled:
“[…]. However, this “team leader concept” actually contradicts the legal requirements; because these are deliberately avoided by this system. In the course of delegating tasks, no selection decision is made, but rather it is assumed that there are only reliable and competent people in the company in the form of each journeyman. In any case, this is not sustainable in the lived arbitrariness; Because when several journeymen were employed on a construction site, as the present case shows, it was completely open due to the system as to who then had and assumed responsibility for the employer. […]. This poor organization by the [employer] posed the danger that, among several equal workers, all of whom were supposed to be responsible for their own safety and that of their employees, but were not authorized to give instructions to one another, ultimately none of them would feel responsible. If there are several equal journeymen on site, none of whom “wear the hat”, this does not increase security, but rather weakens it.
Legal consequences of an (ineffective) delegation
Requirements for effective delegation
Practice Notes
Conclusion
Source Norr
