The employer's duty of care obligates companies to actively protect the health, safety, and personal interests of their employees — legally grounded in § 618 of the German Civil Code (BGB), § 241 para. 2 BGB, and the Occupational Health and Safety Act (ArbSchG). It covers both physical protection (e.g. safe equipment, ergonomic workplaces) and psychological protection (e.g. measures against workplace bullying and burnout). Breaches can result in claims for damages, administrative fines, and in serious cases, criminal consequences.
What Is the Employer's Duty of Care?
The employer's duty of care is a legally established obligation to protect the health, dignity, and economic interests of employees. It is not a voluntary commitment, but a core element of every employment relationship — and applies from the first day of work until the end of the employment contract.
The duty of care can be divided into two areas: the general duty of care applies equally to all employees and derives primarily from § 618 BGB and the ArbSchG. The special duty of care concerns specific groups for whom additional protective legislation applies — such as pregnant employees (Maternity Protection Act, MuSchG), young workers (Young Persons' Employment Act, JArbSchG), or employees with severe disabilities (SGB IX).
General vs. Special Duty of Care
Legal Foundations of the Duty of Care
The duty of care is not regulated in a single statute but arises from several legal sources under German law.
§ 618 BGB – Protection of Life and Health
§ 618 BGB is the central civil law basis for the duty of care. It requires employers to arrange and maintain premises, equipment, machinery, and working conditions in such a way that employees are protected against risks to life and health, insofar as the nature of the work permits. Breaches of § 618 BGB can trigger claims for damages under § 280 BGB.
§ 241 para. 2 BGB – General Duty of Consideration
§ 241 para. 2 BGB complements the specific duty of protection with a general obligation to consider the rights, legal interests, and concerns of the other contracting party. In an employment relationship, this means: employers must also take into account the personal, social, and economic interests of their employees — for example when handling performance data, assigning tasks, or communicating within the team.
Occupational Health and Safety Act (ArbSchG)
The ArbSchG gives concrete form to the duty of care in the area of occupational safety and health. Key obligations under the ArbSchG include:
- § 3 ArbSchG: Employers bear fundamental responsibility for all measures that protect the safety and health of their workforce.
- § 5 ArbSchG: Obligation to conduct a risk assessment — all physical and psychological risks in the workplace must be systematically identified and evaluated.
- § 6 ArbSchG: Documentation obligation — the results of the risk assessment must be recorded in writing.
Areas of the Duty of Care
Physical Health and Occupational Safety
Physical protection is the classic core of the duty of care. It includes:
- Providing safe tools and machinery
- Ergonomic design of workplaces (e.g. height-adjustable desks, adequate lighting)
- Providing personal protective equipment (PPE) in high-risk roles
- Compliance with limit values (e.g. noise levels, chemical exposure)
- Regular occupational safety training and instruction
Learn more about health in the workplace and what companies can do beyond the legal minimum.
Mental Health: Protection Against Bullying and Stress
The psychological dimension of the duty of care is often underestimated in practice — yet it is legally just as binding as physical protection. Since the recommendation of the Federal Institute for Occupational Safety and Health (BAuA) in 2013, risk assessments must explicitly include psychological stressors in the workplace.
In practice, this means:
- Protection against workplace bullying: Employers are obligated to actively prevent bullying. If they knowingly tolerate bullying behaviour, they may face liability for damages and compensation for pain and suffering.
- Burnout prevention: Chronic overwork, constant availability expectations, or unrealistic targets can constitute a breach of the duty of care.
- Risk assessment for psychological stressors: Mandatory under § 5 ArbSchG — factors such as workload intensity, autonomy, and social relationships at work must be taken into account.
A strong culture of constructive error-handling supports employee mental health and reduces psychological burden sustainably.
Data Protection and Personal Rights
The duty of care also extends to protecting employees' personal rights and personal data. Employers must:
- Handle personnel data confidentially and protect it from unauthorised access
- Shield employees from reputational harm or discriminatory conduct
- Uphold the dignity of employees — including during performance reviews or dismissal proceedings
Duty of Care in the Home Office
With the rise of remote work and hybrid working models, the question arises: does the duty of care apply at home too? The answer is unequivocal: yes. § 618 BGB and the ArbSchG apply to home office workplaces as well. Employers share responsibility for ensuring a safe and healthy working environment at home.
In practice, implementation is more challenging than in the office. Recommended measures include:
- Providing written guidelines for setting up a home office
- Informing employees about ergonomic requirements (e.g. monitor distance, seating posture)
- Obtaining and documenting employee self-assessments regarding their home working conditions
- Regular check-ins on employee wellbeing in remote settings
Breach of Duty of Care: Consequences and Liability
Breaching the duty of care is not a minor infraction. Employers face significant legal and financial consequences.
Damages and Compensation for Pain and Suffering
If an employer breaches the duty of care, employees may claim damages under § 280 BGB. In cases of physical harm (e.g. a workplace accident caused by inadequate protective equipment) or psychological harm (e.g. consequences of tolerated bullying), compensation for pain and suffering may also be awarded.
Prerequisite: the damage must be attributable to a breach of duty, and the employer must be responsible for that breach.
Fines and Regulatory Consequences
Breaches of the ArbSchG can prompt intervention by supervisory authorities (trade inspectorates, accident insurance institutions). Under § 25 ArbSchG, fines of up to €25,000 may be imposed. In serious cases — such as intentional endangerment of employees — criminal prosecution is also possible.
Practical Implementation: Checklist for HR Professionals
The following measures help implement the duty of care in a structured, demonstrable way:
- Conduct a risk assessment — Identify physical and psychological risks (§ 5 ArbSchG), document findings (§ 6 ArbSchG), and update regularly.
- Establish a home office policy — Define ergonomic requirements, collect and archive employee self-assessments.
- Implement anti-bullying measures — Clear policies against harassment and bullying, establish a complaints procedure, train managers.
- Introduce a Return-to-Work Management Programme (BEM) — Under § 167 para. 2 SGB IX, BEM is mandatory for employees absent for more than six weeks within a 12-month period.
- Carry out regular training sessions — Cover occupational safety, data protection, and mental health — at minimum once per year, and immediately when new risks arise.
- Ensure thorough documentation — Record all measures, conversations, and training in writing. In the event of a dispute, documentation is the most important evidence.
- Raise awareness among managers — The duty of care does not end at the HR level. Direct line managers play a key role in daily implementation.
Frequently Asked Questions About the Employer's Duty of Care
What is the employer's duty of care?
The duty of care is the legal obligation of employers to actively protect the health, safety, and personal interests of their employees. It derives from § 618 BGB, § 241 para. 2 BGB, and the Occupational Health and Safety Act (ArbSchG), and encompasses physical, psychological, data protection-related, and personal rights aspects.
What happens if the duty of care is breached?
If an employer breaches the duty of care, they face claims for damages under § 280 BGB, compensation for pain and suffering (e.g. where bullying or burnout resulting from chronic overwork is involved), fines under § 25 ArbSchG of up to €25,000, and in extreme cases criminal liability. There is also the risk that a dismissal for health-related reasons will not hold up legally if a BEM process was not properly offered.
Does the duty of care apply in the home office?
Yes. § 618 BGB and the ArbSchG apply to home office workplaces as well. Employers must advise employees on ergonomic working conditions and inform them of requirements for their home workstation. In practice, a written home office policy and documented employee self-assessments are strongly recommended.
What does the duty of care cover in concrete terms?
The duty of care covers physical protection (safe equipment, ergonomics, protective gear), psychological protection (protection against bullying, burnout prevention, risk assessment for psychological stressors), protection of personal rights and personal data, and protection against unreasonable economic disadvantage.
What is the difference between the general and special duty of care?
The general duty of care applies to all employees (§ 618 BGB, ArbSchG). The special duty of care applies to specific groups with heightened protection needs: pregnant and breastfeeding employees (MuSchG), young workers under 18 (JArbSchG), and employees with severe disabilities (SGB IX). Additional, group-specific protective regulations apply to these individuals.
Are employers required to conduct a risk assessment?
Yes — § 5 ArbSchG obliges employers to carry out a risk assessment. It must cover all workplace risks — both physical and psychological. Results must be documented in writing under § 6 ArbSchG. The assessment must be updated whenever working conditions change significantly. Since the BAuA's scientific position paper (2017), the inclusion of psychological stressors in risk assessments has been considered professional standard.
What is the Return-to-Work Management Programme (BEM) — and is it mandatory?
The Return-to-Work Management Programme (BEM, Betriebliches Eingliederungsmanagement) is mandatory under § 167 para. 2 SGB IX when employees have been unable to work for more than six weeks — continuously or repeatedly — within a 12-month period. Its aim is to support employees in returning to work and to prevent permanent incapacity. Employers who fail to offer BEM risk having a health-related dismissal ruled legally invalid.
Conclusion
The employer's duty of care is far more than a formal legal concept — it is a comprehensive responsibility for the health, safety, and dignity of every employee. Physical protection, mental health, data protection, and special care for vulnerable groups together form a legally binding framework that HR professionals must actively shape and document.
Those who implement the duty of care in a structured way — through risk assessments, home office policies, anti-bullying measures, and consistent BEM processes — protect not only their employees, but also their organisation from significant legal and financial risks.
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Sources
- § 618 BGB – Duty to take protective measures. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__618.html
- § 241 para. 2 BGB – Ancillary obligations. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/bgb/__241.html
- Occupational Health and Safety Act (ArbSchG), in particular §§ 3, 5, 6 and 25. Federal Ministry of Labour and Social Affairs, 2024. https://www.gesetze-im-internet.de/arbschg/
- § 167 para. 2 SGB IX – Return-to-Work Management. Federal Ministry of Justice, 2024. https://www.gesetze-im-internet.de/sgb_9_2018/__167.html
- Mental Health in the Workplace – Scientific Status Report. Federal Institute for Occupational Safety and Health (BAuA), 2017. https://www.baua.de/DE/Angebote/Publikationen/Berichte/F2353.html
- Risk Assessment Guidelines. German Social Accident Insurance (DGUV), 2023. https://www.dguv.de/de/praevention/gefaehrdungsbeurteilung/index.jsp
- Working Safely and Healthily. Federal Ministry of Labour and Social Affairs (BMAS), 2024. https://www.bmas.de/DE/Arbeit/Arbeitsschutz/arbeitsschutz.html
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