How far do operator responsibilities go? Sometimes as far as court

If you create a source of danger, it is you that bears the risk – a municipality is responsible for ensuring that the trees growing within its territory are sturdy, the owner of an office building is responsible for the maintenance and safety of the lifts in the building and the operator of a power plant is responsible for the state of its pipes. These are just a few examples which demonstrate that operator responsibility almost always goes hand in hand with safety issues. There are building-, business- and usage-specific regulations. In other words, there are a great many factors that influence safety and which have to be considered on their own merits for each building, object or system. And above all, there are many different people within companies who may be responsible for risks.

Mistakes are the responsibility of the management

A company’s management is ultimately always responsible for ensuring that rules, regulations and laws are complied with. These parameters can be very extensive, which is why the concept of ‘operator responsibility management’ has evolved. However, not every company can afford to permanently employ experts in all of the relevant specialist areas. Seeking external assistance can therefore often be beneficial. It is first and foremost a question of structuring the topic and then deriving check and control concepts. This ranges from the thorough analysis and surveying of properties, systems or facilities to documentation, risk assessment, recommendations for action and implementation assistance. Another advantage is that four eyes see more than two. This means external experts often see risks differently to a company’s own employees, whereas the employees are more familiar with the specifics. Then there is the latest information on new operator responsibilities, the analysis of contracts, advice from external partner lawyers and the offer of regular safety audits. You can find an overview on the DMT website for plant and product safety.

And internally, further training is obviously very important. Providing seminars and training on the topic of operator responsibility is my area of expertise. These are very wide-ranging and include, for example, seminar S0430 ‘Operator responsibility in facility management’, which is designed for professionals and executives from companies or public institutions who are responsible for running buildings and/or their technical systems. Then there is seminar S0440 ‘Service agreements for property operations’, which is aimed at property and facility managers, commercial FM staff, technical property operations heads and people in charge of service agreements. And seminar S0760 ‘Employers’ criminal law responsibilities’ is for anyone who is responsible for the implementation of the statutory requirements in accordance with the Safety and Health at Work Act (ArbSchG) and the Ordinance on Industrial Safety and Health (BetrSichV). This can be staff members with managerial responsibilities such as operations managers, heads of specialist authorities, foremen or managing directors.

At the executive level, seminars can often be considered unproductive. But such seminars actually finance themselves as they save money, for example million-euro penalties for environmental damage, by raising awareness among the staff. I started my career as a criminal defence lawyer, so I am familiar with such risks and am able to describe them very vividly. But rather than trying to scare people, I am trying to make them aware. Because although most people are actually well-meaning, it is the unpleasant responsibilities that are all too often taken too lightly – in the Rhineland dialect, we say ‘Et hätt noch emmer joot jejange’, meaning ‘Things always work out in the end’. But rules and regulations are obviously there in the unlikely case that things don't go quite according to plan.

Lawyer Hartmut Hardt: ‘You can only steer clear of the law by knowing your operator responsibilities.’

Practical operator responsibilities

A few critical examples taken from day-to-day life can illustrate how seriously regulations should be taken. One of the problems which is very common to facility management can be found not in a building, but around it – the areas which have to be kept clear for the fire and rescue service in the event of an emergency. These are always clearly marked, but people nevertheless frequently park their cars there. The competent administrative body doesn’t want to stir up trouble with the tenants, so it turns a blind eye on the basis that ‘they won’t be parked there for long’. The fire and rescue service comes very quickly when there is a fire. But whether it takes the firefighters six or twelve minutes to start extinguishing the fire because the fire engine had to take a detour can make a very big – and life-threatening – difference. Is this something you want to be responsible for? Probably not.

Here’s another example: fire drills ought to be taken seriously. In my seminars, I like to ask this question: ‘Do you know how to use a fire extinguisher?’. This is one of the oldest and most effective ways of fighting a fire, especially as you can usually already apply it at a point when the fire is still limited. The problem here is of a psychological nature – we have a natural ‘Run for your lives!’ flight reflex. You therefore have to make a conscious decision: do I run or do I help? And if you then have to start deciphering the little pictograms in the operating instructions while a fire is raging, it may well be that fleeing is the safer option. My advice: companies would be wise to sacrifice a few full fire extinguishers from time to time to let people practise using them. Ideally, this should be under professional supervision and not at the foam party following the company’s initial public offering.

Hartmut Hardt, lawyer, Association of German Engineers (VDI)

Another interesting – and frequently momentous – topic is water hygiene. The number of infections caused by Legionella in drinking water that can trigger pneumonia and which can even be deadly has been on the increase for years. It can sometimes take some real detective work to identify the root cause. Imagine a law firm takes occupancy of a floor in a beautiful, old villa. Space is a little tight, so there are some packing boxes still stacked in the bathroom. Nobody uses the bathroom to take a shower any more, but some water remains in the pipes. And if this water isn’t run off, germs can develop, which then spread through the pipes – with the result that someone two floors up is suddenly infected with Legionella bacteria without anyone being able to explain where they have come from. A judge would consider this ‘improper use’, meaning the law firm is then responsible for those who fall ill on the third floor.

Regulations are at their most effective when you know WHY something is regulated in that way. It is easy to sometimes think that things are overly regulated in Germany and that there are things that people with any sense simply wouldn’t do. This may be so – but we all make mistakes from time to time. And the purpose of operator responsibility management is to nip such mistakes in the bud. You would be less than pleased to board a plane, only for the pilot to put their checklist to one side and say, ‘Everything will be fine’. Which brings us full circle: if you want to avoid having to deal with criminal law, you should give some thought to your responsibilities in good time. Or to put it more succinctly: deal with it – it will be worth it.


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