It is estimated that international business travel has increased by 25% in the last 10 years and is set to increase further. Mike Sopp advises on how employers can keep employees on overseas assignments safe.
Many UK businesses work in a global economy and so have a global presence. Whether exploring new business opportunities, visiting partners in the supply chain or going to overseas sites, many employees now have to travel for business purposes outside the UK.
A number of civil cases in relation to the employer’s duty of care for employees while overseas have highlighted the need to take all reasonable “best practice” precautions to ensure the safety and security of employees on overseas assignments.
Duty of care
Guidance from the Institution of Occupational Safety and Health (IOSH) and the International SOS Foundation states that the increase in volume of employees travelling (and the profile of such employees) has “an impact on the arrangements and control systems that might be required to control and manage risks effectively”.
As this suggests, employers under UK common law have a duty to take reasonable care for their employees.
According to the guidance referred to above, “this duty of care continues to exist when their employees are sent to work in other jurisdictions, either on a short-term basis or as part of a longer-term arrangement” and may also cover “a worker’s travel arrangements to or from work on a day-to-day basis while working abroad” as well as “the employee’s safety while in transit”.
Case law has upheld this position. In the case of Palfrey v ARC Offshore Ltd (2001) the court found the employer in breach of its duty of care when an employee died from malaria while overseas.
More recently two cases have focused on deaths of employees who were travelling abroad. In the first case (Dusek v Stormharbour Securities LLP, 2015) an employee was killed in a helicopter crash in the Peruvian Andes. The employer was found to be in breach of its duty of care. The judge stated that the employer should have “made at least some inquiry into the safety of the trip and carried out some form of risk assessment”.
This decision was reflected in the case of Cassley v GMP Securities Europe LLP and Sundance Resources Limited (2015) when an employee was also killed while travelling by air. In summary, the judgment found that the employer (GMP) had breached its duty to take reasonable care, but the second party had not (the flight charterer). The employer was found to have failed to:
make enquiries about the proposed trip and determine that it was safe
ensure that risks would be avoided or reduced to an acceptable level
show any leadership
undertake any risk assessments
complete selection process for contractors, including considering safety standards.
These cases indicate that an employer’s duty extends to taking reasonable care to protect employees from unnecessary risks — not only health risks but any risks — while working in third-party premises and travelling overseas.
For employers, meeting this duty of care can be problematic as the amount of guidance available in this area has until recently been limited. However, in 2016 a number of notable bodies published guidance that may assist in meeting the duty of care.
First, in conjunction with International SOS, the British Standards Institution (BSI) published PAS3001:2016 Travelling for Work. Responsibilities of an Organisation for Health, Safety and Security. Code of Practice.
The introduction to this publication notes that workers may be travelling to locations ranging from relatively safe ones to those that are high-risk but that “even a relatively safe destination can rapidly degenerate into a high-risk destination due to health, safety, security, political or social reasons, or natural disasters”.
According to the BSI, PAS3001 “has been developed to give organisations a tool to help them protect their mobile workforce and themselves”. It gives recommendations on organisational responsibility in respect of the health, safety and security of individuals travelling for work, noting that security alone is insufficient with employers needing to “engage further” to:
prevent, respond to and mitigate incidents to reduce costly interruptions, improve morale and strengthen productivity
protect the organisation’s corporate social responsibility agenda and reputation.
Similarly, in 2016, IOSH in conjunction with International SOS produced a guidance document, Managing the Safety, Health and Security of Mobile Workers: An Occupational Safety and Health Practitioner’s Guide.
This document’s introduction states that the aim of the guide is to enable an organisation to translate the duty of care “into policies, processes and actions that will protect your workforce and thereby not only support your business aims but also improve your organisation’s reputation and credibility”.
Of interest, this publication notes the need to have “competent individuals to manage the travel safety, health and security for all travellers with a view to reducing risks and promoting the health, safety, security and wellbeing of an ever increasing and varied mobile workforce”.
It is worth noting that both publications make reference to “security” as well as health and safety, thereby suggesting that those with a duty of care need to take a more holistic approach to managing the risks. In terms of security, this could include not only personnel security, but also the protection of information.
It is also worth noting that PAS3001 makes reference to “workers” rather than employees, suggesting that the duty of care may include not only direct employees but also others (eg sub-contractors).
In summary, PAS3001 reflects a similar approach to the more recognised management standards that are based upon the International Organisation for Standards “Annex SL” framework.
As such, the publication makes reference to top management leadership and commitment and should set out the responsibility and authority for, among other matters:
developing and maintaining systems and arrangements to inform, protect and assist the traveller
assessing the need for, and providing training and information
defining the role of external assistance providers in helping the organisation manage travel safety, health and security
maintaining a system to report on the performance of travel, safety, health and security to top management.
PAS 3001, then, sets out the measures required to manage the risks of overseas travel with a focus on establishing roles and responsibilities, assessment of risk, training requirements, and the need for a travel approval process.
The IOSH/International SOS Foundation publication also reflects on the need for policy setting and risk assessment, but also notes the need to have in place:
systems so that the organisation stays informed of changing risks and can relay such information to their workers while they are working remotely
provide workers with access to a 24-hour helpline, which may be able to provide support for medical or security questions or facilitate the provision of emergency assistance.
In terms of risk assessing the IOSH publication offers good advice as to the factors that need to be considered, but emphasises that “creating awareness of the risks is no longer sufficient. Active preventive measures that are documented and auditable should be put in place”.
Both documents then also highlight the need to have in place crisis/emergency management procedures in the event of an unwanted event materialising while workers are overseas.
By following such documents, the employer is likely to be doing all that is reasonably practicable in meeting its duty of care.
PAS 3001:2016 Travelling for Work. Responsibilities of an Organisation for Health, Safety and Security. Code of Practice, BSI
Operational security management in violent environments, Overseas Development Institute
Last reviewed 30 June 2017