Definition and Significance of Operational Disruption
The term operational disruption refers, under German law, to a disturbance or interruption of the normal operational processes of a company or public institution. Operational disruptions can be caused by a variety of factors and have significant legal consequences in labor law, civil law, administrative law, and insurance law. In the context of this legal lexicon, an operational disruption refers to a situation in which, as the result of technical defects, organizational shortcomings, external influences, or other circumstances, the proper operation is at least partially impaired.
Manifestations and Causes of Operational Disruptions
Operational disruptions can manifest in various forms. The main types are:
Technical Operational Disruption
Technical defects in machinery, production facilities, or IT systems are classic causes of operational disruptions. Examples include machine breakdowns, failure of the power supply, or breakdowns of communication systems.
Organizational and Personnel Operational Disruption
Poor organization, for example due to insufficient personnel, inadequate workflows, or errors in the coordination between departments, can lead to internal operational disruptions.
External Influences
This includes all influences originating outside the company, such as natural disasters (storms, floods), strikes, official measures, epidemics, or supply shortages from suppliers.
Intentional or Negligent Acts
Sabotage, unauthorized absence from the workplace, or other actions by third parties (such as theft or vandalism) can also trigger an operational disruption.
Legal Classification of Operational Disruption
Operational disruptions must be considered in various areas of law, including labor law, in commercial law, in the context of contracts for work and services, in insurance law and in public law.
Labor Law Aspects
Default of Acceptance and Continued Remuneration
According to § 615 BGB, the right to remuneration continues to exist in the event of an operational disruption, provided that the employee is willing and able to work but the performance of work becomes impossible for operational reasons (so-called business risk doctrine). This means that the business risk is borne by the employer, unless the disruption was caused by a strike by employees or by force majeure.
Operational Disruption and Short-Time Work
In cases of longer-lasting operational disruptions, the company may order short-time work. The statutory basis for this is found in the Social Code Book III (§§ 95 et seq. SGB III). The introduction of short-time work requires a works agreement or a provision in the employment contract. As a result, working hours are reduced and the so-called short-time allowance (Kurzarbeitergeld) is paid by the Federal Employment Agency.
Operational Disruption and Co-Determination Rights
Operational disruptions that affect working hours, workplaces, or other essential working conditions trigger co-determination rights of the works council under § 87 para. 1 BetrVG.
Civil Law and Liability Issues
Claims for Damages
If an operational disruption leads to delays or deficient fulfillment of contracts, claims for damages or rights of withdrawal may arise (§§ 280 ff., 323 BGB). However, liability may in some circumstances be excluded if the operational disruption is due to force majeure or unavoidable events.
Impossibility and Risk Allocation
A prolonged operational disruption can result in the contractual obligation no longer being performable (impossibility under § 275 BGB). In this case, § 326 BGB governs to what extent the counter-performance lapses. Where there are reciprocal contracts, the risk allocation is generally set out in § 326 para. 2 BGB.
Operational Disruption in Insurance Law
Many companies protect themselves against the financial consequences of operational disruptions through business interruption, machinery, or operational disruption insurance policies. In the event of a covered operational disruption, there is a claim for compensation for business interruption losses in accordance with the insurance contract and the General Terms and Conditions of Insurance (AVB). The exact distinction between operational disruption and business interruption is of central importance for the insurance benefit.
Public Operational Disruption – Administrative Law Perspective
Operational disruptions in public institutions (e.g. hospitals, transport services, schools) may give rise to administrative law issues, for instance regarding liability, statutory emergency plans, or compensation claims of affected parties.
Consequences of Operational Disruptions
Business Consequences
The most common consequences include production outages, disruptions to supply chains, additional personnel and restoration efforts, as well as financial disadvantages due to claims for damages or sanctions.
Liability Risks and Preventive Duties
Companies are obliged to take preventive measures and mitigate risks (e.g. § 823 BGB, general duty of care). If an operational disruption is caused culpably or if reasonable measures to prevent it are omitted, liability risks including recourse claims may arise.
Obligations in Handling Operational Disruptions
- Reporting and Documentation: Companies are required to document operational disruptions internally and, if necessary, report them externally (e.g. to authorities, insurers, partners).
- Measures to Remedy Disruptions: There is an obligation to rectify disruptions immediately and to take measures to limit damage.
Operational Disruption and Force Majeure
Force majeure is generally defined in German law as an external event that is unforeseeable and unavoidable even with the utmost reasonable care. An operational disruption can be the result of force majeure, temporarily suspending or adjusting contractual obligations. For example, many contracts contain so-called force majeure clauses which regulate the legal consequences in the event of an operational disruption caused by force majeure.
Distinction and Related Terms
Operational Disruption vs. Business Interruption
While “operational disruption” refers to any impairment of operations, “business interruption” usually means a complete or at least significant cessation of operations, typically with considerable economic impact.
Special Cases: Strike, Lockout, Pandemic
- Strike und Lockout may be the result or the cause of an operational disruption, but must be considered separately from a labor law perspective.
- Pandemics (e.g. COVID-19) can lead to extensive operational disruptions, for which special statutory regulations may apply (e.g. Infection Protection Act, IfSG).
Literature References and Further Sources
- German Civil Code (BGB), in particular §§ 275, 280 ff., 323, 326, 615
- Works Constitution Act (BetrVG), especially § 87
- Social Code Book III (SGB III), in particular §§ 95 ff.
- General Terms and Conditions for Business Interruption Insurance (AVB)
- Handbook of Labor Law, Beck Verlag
- Palandt, BGB, current edition
Summary
Die operational disruption is a central term with far-reaching legal consequences in various areas of law. It affects companies in all sectors and requires both preventive measures and clear rules for dealing with loss events. The legal consequences depend in each case on the specific circumstances and the relevant statutory, collective, or contractual provisions. Companies are therefore well advised to address the topic in a structured manner and to take appropriate precautions in order to minimize the legal and economic effects in the event of an operational disruption.
Frequently Asked Questions
What reporting obligations do companies have to authorities in the event of operational disruptions?
Under German law, companies have different reporting obligations to authorities in the event of operational disruptions, depending on the industry and type of operation. Key regulations can be found, for example, in § 17 of the Occupational Health and Safety Act (ArbSchG) as well as in special laws such as the Federal Immission Control Act (BImSchG), the Infection Protection Act (IfSG) for food companies, and the IT Security Act (IT-SiG) for operators of critical infrastructure. If an operational disruption occurs which could endanger the health of employees, the company must immediately report the incident to the competent supervisory authority. In addition, disruptions that could lead to environmental hazards must be reported to the environmental office and, depending on the federal state, to additional specialist agencies. Violations of these reporting obligations can result in fines or, in individual cases, even criminal prosecution. The specific requirements regarding the form, content, and deadline of the report are governed by the specific statutory provision. Regardless, prompt notification to the relevant accident insurance institutions may also be necessary.
Can employees refuse to work in the event of an operational disruption?
In the event of an operational disruption, employees are in principle required to perform their work, unless there are specific dangers to life or health (§ 275 para. 3 BGB, § 15 para. 1 ArbSchG). For example, if there is a massive power or water supply crisis that compromises occupational safety, employees may, after careful consideration and documentation, refuse to work. This requires that the employer has not fulfilled their duty of care and has not averted the danger. A general production disruption without a danger element does not in principle justify refusal to perform. In such cases, the employer continues to bear the so-called operational risk.
Who bears the risk of loss of work in the event of an operational disruption?
Under German law, the employer generally bears the so-called operational risk under § 615 sentence 3 BGB. This means that the employer must pay remuneration for default of acceptance, even if employees cannot work due to circumstances beyond their control resulting from an operational disruption (e.g. machine breakdown, power outage, flooding). However, this does not apply in cases of force majeure where work becomes permanently impossible or the employment relationship can no longer reasonably be continued. Exceptions exist in special regulations such as short-time work compensation under § 95 SGB III, if certain conditions—such as a significant loss of work—are met.
What liability risks do companies face vis-à-vis third parties in the event of operational disruptions?
If third parties (e.g. customers, suppliers, or residents) suffer damage as a result of an operational disruption, the company is generally liable under general tort law (§§ 823 ff. BGB) or, if applicable, on a contractual basis. Special duties of care exist particularly for hazardous installations, for which strict liability under the law (e.g. Environmental Liability Act, Product Liability Act) may apply. In the case of environmental damages, administrative sanctions, restoration costs, and potential claims for damages may also arise. Companies are therefore advised to include provisions for incidents in their contracts and to maintain suitable insurance solutions.
Can operational disruptions justify extraordinary termination?
An operational disruption alone does not in principle justify an extraordinary termination of the employment relationship. However, repeated or severe breaches of duty by employees in connection with the disruption may justify termination, for example if grossly negligent or intentional acts contribute to the disruption. For employers, only serious and lasting operational disruptions that make continuation of operations unreasonable can justify termination for operational reasons. In any case, the strict requirements of the Protection Against Dismissal Act (KSchG) and any co-determination rights of the works council must be observed.
What information and disclosure obligations exist toward employees in the event of an operational disruption?
The employer is obliged to inform employees comprehensively and without delay about the situation, any hazards, and the measures taken to avert danger in the event of an operational disruption (§ 81 BetrVG, § 16 ArbSchG). Furthermore, the employer must inform works council bodies in good time about planned measures in connection with the disruption under § 92a BetrVG and involve them in any changes to work organization. In hazardous situations, the employer is required to take all occupational safety measures and provide the necessary instructions. Failing to do so can lead to employment law sanctions and liability risks.
When can the state order measures to protect public safety in the event of an operational disruption?
If an operational disruption leads to dangers for public safety and order, competent authorities may issue orders or exclusion directives, shut down operations, or take immediate measures to avert danger based on general police and regulatory law (e.g. § 14 OBG NRW, § 17 ASOG Berlin). In particular, official intervention is provided for in the event of incidents such as industrial accidents with environmental hazards, epidemics, or disruptions of critical infrastructure, as part of infectious disease or disaster control law. Companies are obliged to comply with such orders and to cooperate with authorities; violations can result in severe penalties.
