How far does Duty of Care really travel?
Duty of Care denotes the moral and legal responsibilities any employer holds towards their employees and other individuals. Organisations need to ensure that their people are free to travel, work and live in a safe and secure environment enabling them to focus on the main activity that they are employed for. This is even more important in today’s global economy where business travel and international assignments are on the increase by over 5% a year and the threats and risks are constantly evolving. Neglecting Duty of Care can lead to legal proceedings and damage to an organisation’s reputation, which may ultimately affect share price and profits, or in the case of NGOs, loss of donations.
In the UK, there is no set mandate on what a corporate policy on Duty of Care should include but there are best practices. The principle has been borne largely from cases of negligence and supported by some statutory law. Most notable examples include:
- Health and Safety at Work Act (1974)
- Caparo v Dickman
- Corporate Manslaughter and Corporate Homicide Act (2007)
The Health and Safety at Work Act stipulates that employers must ensure and protect the health, safety and welfare of all employees wherever “reasonably practicable”. It codifies the responsibilities of the employer in their assessment of present and potential risks faced by employees. If their protection is insufficient and they are found guilty of negligence, the costs can be significant.
The interpretation of this law, to aid the determination of negligence, has been enhanced based on the principles of the Caparo v Dickman case. The “tripartite” test can be applied to individual cases and has altered how cases are resided over in court. The test asks three questions:
- Was the harm reasonably foreseeable?
- Was there a requisite degree of proximity between the claimant and the defendant?
- Is it fair, just and reasonable to impose a Duty of Care; are there precluding public policy concerns?
The most significant consequence of this case means that, rather than requiring the employer or defendant to prove its level of care, it falls upon the claimant to demonstrate that the duty exists.
The Corporate Manslaughter and Corporate Homicide Act 2007 puts criminal liability on an organisation if there is deemed to be a gross negligence of Duty of Care which results in the death of an employee.
The precedents concerning Duty of Care, especially when an employee is required to travel, indicate the necessary role of the employer to reasonably foresee and prepare for multiple scenarios. There is no standalone law for employers to follow and so the onus is on the employer to determine what is legally and morally required. Corporate policies and strategies must be decided, disseminated effectively and enforced to both determine the risk and to effectively manage it.
Employers have an obligation to consider all potential risks facing employees travelling for work, whether road accidents, a medical emergency, natural disasters, political uprising or any type of security incident. The delivery of Duty of Care will vary depending on the organisation and their pre-determined risk threshold, however, comprehensive best practice for travelling employees should include the four “safe travel pillars” that inform a policy and procedure that is clearly recorded for audit purposes. These “safe travel pillars” are:
- Risk assessment prior to travel
- Traveller preparation or training
- Continual risk monitoring and communication
- Immediate and planned response
When incidents do occur, there are a range of insurance products available to support organisations by indemnifying any losses incurred but also, perhaps more importantly, providing effective responses for a wide range of incidents. When it comes to protecting people, the main products include:
- Personal Accident and Travel (Business Travel Accident)
- Kidnap for Ransom
- Security Incident Response
Each of these products, no matter who the insurer, provides an organisation with access to response services from a third party linked to the policy. While each of these products provides a critical element to a travel risk management strategy, they are only part of the solution.
Organisations need to take a multi-faceted approach to meeting their Duty of Care obligations for their travelling population. The Four Pillars provide a useful framework for reviewing existing arrangements or for designing an approach. Ultimately, it is not only the legal requirement but also commercially beneficial to ensure that any organisation is seen as a responsible and attractive employer who takes meeting their Duty of Care obligations seriously.
Case Study – Travel Risk Management
When discussing the extent of Duty of Care for travelling employees, the Dusek v StormHarbour Securities LLP (‘StormHarbour’) provides a good illustration not only of the cost of failure but also of the importance of an employer demonstrating sound judgement as to what is reasonably foreseeable. Whilst working for StormHarbour overseeing hydroelectric projects in Peru, Mr Dusek was killed when the helicopter he was using to travel between locations crashed into the Andes Mountains. It was proven that StormHarbour had neglected its duty of care in its failure to conduct an appropriate risk assessment of the journeys Mr Dusek was required to take in-country, since its original assessments only covered scheduled flights from London and back. The court ruled that this was a foreseeable risk and StormHarbour were held liable.