The world is a global market place and it has become more common for employees to travel for business or relocate to an overseas post to promote and enhance the development of trade and services between companies and organisations all around the globe. Flying to exotic places has become the norm in modern life. Most businesses trips go smoothly and the employee often comes back with wonderful stories of the nice people they met, the beautiful sites they have seen and the fine cuisine they have dined on. Unfortunately, life is unpredictable and the employer may become liable if circumstances do go wrong.
The Health and Safety at Work Act 1974
The Health and Safety at Work Act 1974 imposes on the employer a statutory duty to ensure the health, and welfare of all employees. The employment relationship also implies mutual trust and confidence. The employer has a common law duty of care for any employee who is tasked with working overseas. The employer’s responsibility includes providing a safe system of working. To ensure they select fellow competent employees, managers and proper equipment.
The employer is required to assess and alleviate any perils to the employee’s health and safety and welfare connected with the overseas assignment. It is important to assess all risks very carefully. These can include the dangers of political unrest and terrorism, crime, natural disasters and variations in climate, infections due to diseases and pandemics. The duty of care will encompass threats to the employee’s metal health and physical health which could potentially occur whilst working over seas
Matters to consider include language barriers, access to communications networks such phone and internet services. Cultural differences which are not the norm in their usual place of residence. Access to shops to buy food and access to medical advice and services.
Risk Management Policy
It is important to assess all these matters holistically and take steps to implement an overseas working risk management policy. This will help the employer execute their duty of care and reduce the risk of any negligence claim the employee may attempt to bring against your company or organisation. Any assessment must be detailed and should be carried out by a competent person. It will be a cost-effective exercise and will improve the safety of your employee. It will be more economical than paying expensive evacuation costs to get the employee home or legal costs and damages.
The risk management policy must firstly identify the precise responsibilities which must be undertaken to guard employees whilst working abroad. This assessment should be carried out by competent persons. You may consider bringing in specialist advisors with knowledge of the country to help with your assessment. Assessments will vary depending on which country the employee will be working.
The following are a few matters to consider. Start by identifying all risks that may occur and the risk factor for each incident, formulate strategies for averting and dealing with those risks. Listen to the advice the Foreign and Commonwealth Office provides specific to any region. Make sure the employee is correctly insured for the travel. Ask the employee to update you on any changes to their work plans. Provide the employee with training to assess identifiable risks themselves. Have an effective system of communication so that the employee can always stay in touch. Assess medical and emotional support. Identify organisations and agencies that can help keep the employee safe. These can include translators and security services, travel companies and government departments.
Cases
Case law has upheld the duty of care by an employer to an employee travelling abroad. Sadly, there have been a number of tragic cases before the courts involving the death of employees whilst working overseas. In the case of Palfrey and ARC Offshore Limited 2001, the employer was held in breach of the duty of care when the employee contracted malaria and died in a foreign country. In the case Dusek v Storm Harbour Securities LLP 2015 an employee was killed in a helicopter crash in Peru. The employer was found to be in breach of its duty of care. The employer was found liable for failing to assess the risk of the helicopter trip. In Cassley v GMP Securities Europe LLP and Sundance Resources Limited 2015 an employee was killed in a plane crash. The court ruled found that the employer had breached its duty to take reasonable care. It was determined the employer failed to make reasonable enquiries about the safety of the flight, failed to reduce the risk to an acceptable level, failed to undertake any risk assessments, failed to show leadership, failed to have a selection process for contractors.
Taking practical steps and seeking advice will ensure the employer will uphold their duty of care to the employee and reduce the risk of any legal claim against them. Call us on 01455 852028 or contact us here.
