“I don’t want to go to Jail”
This quote from a Germany based HR director at a large Japanese construction machine manufacturer may sound dramatic at first sight. It was said during a call around Duty of Care with said HR director. In fact the company had just hired a new sales manager for the Africa Region, their most promising source of revenue for the years to come.
During contract negotiation with their new hire, a French national, the manufacturer was asked what the company had in place to protect him and his colleagues against any harm and danger related to travel.
It was then that the HR director started realizing that the topic of “Duty of Care” had a larger impact on his organization. Not only had he to reassure his new talent that his new employer had done all necessary to keep him safe and productive while on business in challenging environments. It also turned out that the organization had some additional 200 employees, all traveling internationally. Those frequent traveler had their bases in one of the companies sites in Europe, spread around 8 different countries.
The HR organization quickly realized that any of these 8 locations had their own “Duty of Care” legislation, in addition to legal frameworks around employee protection in so called receiving countries around the globe.
What legal framework to comply with?
When looking at legal “Duty of Care” obligations (in addition to e.g. moral ones) applicable to international travel, a company has not only to comply with “home country” frameworks, but must equip travelers with clear guidelines and rules of conduct adapted to the country of travel.
For companies traveling only within national borders an understanding of national laws (eventually in addition to regional ones) might be sufficient. As soon as international travel is involved the first step is to identify top destinations. Less frequent destinations may be added at a later stage.
Typically each legal framework for each of the identified locations needs to be understood and be reflected in a “Travel Risk Policy. Alternatively many companies tend to simply identify the destination with the strictest legislation in place.
That one would serve as base for a further policy development. For example in Europe, the UK Manslaughter Act and related UK legislation is often considered to be strictest.
Destination, origin, labor law, social security law, tax legislation, and criminal law will have to be examined when assessing the employers legal risk. Travelers may also be considered differently to e.g. expatriates and their family members.
Consequences of failure
This post does not detail on non-legal aspects to failure in Duty of care, such as: danger to employer branding, loss in productivity, reputational risks and others.
In future posts we will also detail on how to structure and develop a travel risk policy that caters for all aspects prior a trip, during a trip and in case of an emergency.
Every traveling organization is different and has to develop its individual policies based on a number of triggers, such as: Amount of travel activity per year, type of travel, %age of travel to high risk destinations, and more. A risk categorization may include considerations for illness, crime, terrorism, natural disasters, war and armed conflicts.
A thought through and tested travel policy (including a travel risk section) with clear guidelines, clear accountability rules in line with respective destination specific policies is based to protect an organization from liability claims. The policy must cover all elements of Duty of Care incl. for preparation, information, intervention and control.
The United Kingdom
The Health and Safety at Work Act 1974 (HSWA) can be considered, alongside with other common law duties, as the main legal framework in country. Employers have a statutory duty to take all reasonably practicable measures to protect workers from risks to their health and safety whilst at work.
Additional resource for the UK: https://www.gov.uk/guidance/operating-in-high-risk-environments-advice-for-business
Article 328 of the Swiss Code of Obligations (CO; RS 220) can be considered the main point of reference in Swiss law related to Travel risk Management.
Employers duty include duty of information; duty of prevention; duty of monitoring, - duty of intervention.
§ 618 BGB (civil Code) states clearly that an employer has to protect life and health of its employees from any hazard. In case of violation of duty of care obligations that fulfill criminal offence criminal consequences can be taken. The German law however also knows the so called “duty of loyalty. Under the duty of loyalty an employee is hold to fulfill all rules and regulations designed to protect him/her at work.
French law requires any employer to ensure the safety of its employees in the course of their duties. This obligation requires all employers to be vigilant to aspects of health, geopolitical risks and terrorist risks. This is also true during travel abroad for any duration.
Article L. 4121-1 of the Labor Code, transposing European Directive No. 89/391/EEC of 12 June 1989 is one of the relevant laws applicable.
other countries - kindly reach out and we'll advise on appropriate sources.
Sources utilised to write this post:
Wirtschaftsgrundschutz, Baustein MA1 Reisesicherheit; Bundesamt für Verfassungsschutz 2016, 1. Auflage
International SOS foundation (www.internationalsosfoundation.org)