According to statistics portal Statista, around 900,000 workers were employed in Germany in 2019 within the framework of the German Law on Temporary Employment. Approximately half of these workers were employed in the production sector. However, there are more work accidents in this sector per se than is the case for administrative tasks in offices or in the service sector. At the same time, compared to permanent staff, temporary workers are often in a company for a shorter period of time and change jobs more frequently. As a result of this, such workers are less familiar with the working environment and repeatedly have to become accustomed to other machines, devices and processes etc. In turn, they have a greater risk of being involved in a workplace accident. So how can effective occupational protection for temporary workers be guaranteed?
The fundamentals of occupational safety
According to the German Occupational Safety and Health Act, workers have a right to have their safety and health protected in the workplace. This means that it is the responsibility of the employer to take appropriate measures to ensure the safety of their staff.
A risk assessment is used as the basis for this: the assessment identifies possible sources of danger in the workplace and specifies appropriate precautionary measures. Therefore, equipment in operation, such as ladders and steps, must be checked for stability on a regular basis, vehicles must be maintained or slippery surfaces must be marked as such etc. The risk assessment is not set in stone. If organisational changes are to be made, such as new workflows or work procedures, or if a critical situation such as a near-accident has occurred, the assessment must be adapted.
To ensure that the risks and measures specified in the risk assessment are also observed in everyday work, the workforce naturally also needs the relevant information. Therefore, the law provides that training on the safety measures in a company must be given
- before an employee’s work contract starts in each case
- each time the scope of duties changes in any way (as well as when new work equipment or technology is introduced)
- as well as once a year generally on the topic of accident prevention
.
It is essential that the workers who undertake the training understand and internalise the occupational safety instructions. With this in mind, workers must sign to confirm that they have taken part in the safety training session. This also serves as documentation for the employer vis-à-vis inspecting authorities, such as the Federal Institute for Occupational Safety and Health (BAUA) or the Employer’s Liability Insurance Association as a statutory accident insurance institution.
If, in spite of all the precautions taken, an accident still occurs, the question arises as to who is liable for a workplace accident? If a workplace accident turns out to be the result of wilful negligence on the part of the employer, it can become expensive as the costs incurred as a result of the workplace accident are to be borne by the employer.
Occupational safety and contract work – who is responsible for what?
The answer to the question of who is responsible for occupational safety in the field of contract work is somewhat more complex than with traditional direct employment contracts. When it comes to contract work, which is also referred to as temporary employment, personnel leasing etc., there is a triangular relationship between the personnel service provider, the company hiring the worker and the temporary worker. The temporary worker’s employer is the personnel service provider, but the worker’s place of work is the premises of the company that has hired them. So who is responsible for occupational safety in the workplace?
Because the personnel leasing company is the employer, it is primarily responsible for the duty of care for worker safety. However, on the one hand, the company hiring the worker is authorised to issue instructions to temporary workers and, on the other hand, is obliged to instruct temporary workers on the risks that may occur on site and in the course of operations.
This usually results in the following distribution in practice:
- In the first instance, the personnel leasing company is responsible for selecting appropriate personnel for the respective field of activity. This means that only workers who can prove they have appropriate training or qualifications for the respective field and/or are able to perform the work in terms of their health and physical capability are considered for work with certain materials or machines. Furthermore, the worker receives basic training on occupational safety from the personnel leasing company and is provided with basic personal protective equipment (PPE). The temporary work agency must also ensure that the company hiring the worker complies with occupational safety regulations.
- The company hiring the worker must implement the relevant health and safety regulations in day-to-day work. With regard to occupational health and safety and health management, the company hiring the worker must not distinguish between permanent employees and workers who are working for the company on a temporary basis only. Details of responsibilities can be contractually regulated; such details can include whether the temporary employment agency or the company hiring the respective worker is to carry out a preliminary occupational health examination if it is required.
- In turn, the temporary worker is also responsible for their own safety. Therefore, any personal protective equipment issued must be used correctly. Anyone who reports for work under the influence of alcohol or drugs, for example, and can therefore no longer reasonably assess risks undermines the effectiveness of occupational safety.
An accident at work – who is liable?
A positive trend can be seen in the number of work accidents that occur despite all the precautionary measures taken: while a record 1.9 million work accidents were reported in Germany in 1992, this number dropped to 871,547 in 2019.
In principle, workers are protected against accidents at work by means of statutory accident insurance. Insurance carriers for companies in the German private sector and their employees are employer’s liability insurance associations. These cover the costs of medical care and undertake the professional and social rehabilitation of persons who have suffered an accident at work. However, this only applies to cases in which there is no wilful negligence of the obligations set out in the Occupational Safety and Health Act.
The prevention of occupational accidents is therefore in the interest of the insurance company. For this purpose, employer’s liability insurance associations are entitled to check whether occupational health and safety guidelines are observed in production facilities. To this end, they are allowed to examine work equipment, protective equipment, work procedures, documentation etc.
Occupational accidents in the field of contract work – specifics and current case law
However, the special triangular employment relationship in temporary employment between the personnel leasing company, the user company and the temporary worker sometimes makes such a review difficult as well as a clear distribution of responsibilities resulting from this. In general, the following applies in the case of accidents involving temporary workers: the company that has hired the respective worker is primarily liable if it has wilfully neglected occupational health and safety regulations (liability privilege on the part of the hiring company). The temporary worker is therefore treated in the same way as a person from the permanent workforce of the hiring company – even if their employer is actually the personnel service provider.
Conversely, however, this liability privilege does not mean that the leasing company cannot be held liable with regard to workplace safety for the workers it has leased. The temporary work agency must exercise its control and monitoring rights. However, from the point of view of the courts, these are limited because the company in which the temporary worker is employed is responsible for actually implementing occupational safety measures.
If the hiring company, personnel leasing company and temporary workers have fulfilled their respective obligations, then the employer’s liability insurance association takes over claims settlement. In any case, the accident must be reported to the Verwaltungs-Berufsgenossenschaft (VBG) (German Social Accident Insurance Institution for the administrative sector) responsible for temporary employment agencies – not the employer’s liability insurance association for the hiring company.
(Cf. Judgments of the Federal Court of Justice of 18 November 2014 – VI civil law 141/13; State Labour Court of Hesse dated 05/07/2018 – 9 Sa 459/17)
If a violation of the Occupational Safety and Health Act is exposed without an accident having occurred, it is an administrative offence. If the Occupational Safety and Health Act is negligently or wilfully violated, fines of up to EUR 25,000 can be imposed.
If an accident occurs as a result of neglect of duty and, in the worst case, the injured person dies as a result of the accident at work, this is even a case for criminal law; the case is then investigated to determine whether it falls under negligent physical injury or negligent homicide.
Personal protective equipment for temporary workers
PPE is especially important in the production industry, which often employs temporary workers. In this case, temporary workers are called upon to provide support during order peaks in production and then have to adapt to the conditions and work processes very quickly. Unfortunately, this is not always possible – and where work is carried out by hand, then accidents involving the hands often occur. For this reason, basic protective equipment includes safety gloves that meet the respective workplace requirements but are also comfortable to wear. But not all gloves are equal. Wearing characteristics and protective properties must be individually tailored to the respective field of activity. Which is why uvex offers a wide range of safety gloves.
With patented Bamboo TwinFlex® technology, the uvex D500 foam safety gloves provide effective protection against cuts. At the same time, the gloves offer exceptional flexibility and dexterity so that work is literally easier to handle, whether in the construction industry, the automotive industry or the metal working and glass processing sector.
For maximum precision, the uvex phynomic C5 gloves are ideal – they are especially designed for tactile sensitivity and dexterity when assembling small parts. In addition, these safety gloves are particularly comfortable on the skin thanks to the breathable material. In the food industry in particular, safety gloves must fulfil especially high requirements. The material not only needs to provide a high degree of protection against cuts but must also be especially abrasion-resistant and free from hazardous substances so as not to contaminate the foodstuffs being processed. uvex phynomic C5 cut protection gloves offer all these properties.
Noise or mechanical and ergonomic stresses are also to be expected in many workplaces. There may even be a health hazard due to corrosive or explosive substances. uvex safety offers a whole host of occupational safety products, ranging from individually adjusted hearing protection, safety spectacles and VDU spectacles through to orthopaedic safety shoes.
Are you a temporary worker or do you regularly employ temporary workers in your company? Tell us about your experiences with temporary work and the associated occupational safety in your company. We are also happy to include additional information on the subject of occupational health and safety for temporary workers in our blog. We look forward to reading your comments!