Assigning employees to crisis regions and within Europe
When assigning employees to crisis areas such as Syria, Iraq or Afghanistan, the employer is not generally obliged to take specific protective measures for its employees. A duty of care does exist, however, when an employee is subject to a specific danger in his or her area of work. Europe as a whole is not considered a crisis area. Therefore, professional assignments in Europe are - not yet - subject to a higher duty of care on the part of the employer. Things are different, however, if - as was recently the case in Brussels and Istanbul - the Ministry of Foreign Affairs issues notice of an increased security/terror warning level. In such cases the employer's duty of care applies. The content and scope of the employer's duty of care is based on the specific risk to the employee.
Informing the employee of the security situation in the area of work
It is generally recognized that the employer's duty of care includes providing as much information as possible to the employee regarding the security situation in the area of work, in particular in relation to specific warnings from local security agencies.
In the event of current and specific travel warnings issued by the Ministry of Foreign Affairs, the employer must take suitable measures to protect its employee in the target area. The more specific the risk to the employee, the more extensive the protective measures to be taken by the employer. This may also mean that, in particularly dangerous situations, business travel to a dangerous crisis area must be avoided or interrupted and/or employees deployed there must be recalled.
Security policies and information portals
The employer's duty of care may also include instructions to use or avoid specific means of transport in dangerous areas or to never travel alone in the area without an escort. Many international companies have already established policies or set up intranet portals for their employees in order to provide detailed codes of behavior for certain types of activity in crisis areas and to give employees on site the opportunity to quickly obtain current security-relevant information for the area.
If the employer establishes such information portals, its duty of care then includes keeping them up to date in terms of security-relevant information. If such regulations and sources of information exist, the employee is obliged to take reasonable steps to protect himself insofar as possible.
Arranging comprehensive insurance
The employer is also obliged to arrange comprehensive insurance for foreign assignments, including accident insurance, travel insurance, insurance against theft and health insurance. There are now also numerous providers of commercial kidnapping and ransom insurance policies.
Immediate recall of the employee and cancellation of business travel
If, despite any security measures taken or if such measures are impossible to take on site, significant risk to life and limb continues to exist for the employee, the employer's duty of care may require it to immediately recall the employee from the crisis area to his home country or to a less risky work assignment.
Travel warnings from security agencies
One legal issue is the fact that security agencies in different countries frequently reach different conclusions regarding the security situation in a given region. Recently, for example, the Ministry of Foreign Affairs has issued security and travel warnings for a certain region or city while other countries' security agencies, including that of the destination itself, continued to consider travel there perfectly safe. Employers in Germany are well advised to base their actions on the - generally rather cautious - assessments made by security agencies in Germany.
Without such an official warning, i.e. from the Ministry of Foreign Affairs or local authorities, it would be difficult to require an employer to take additional security measures for the employee.
If a travel warning does apply, the employee is generally entitled to refuse performance. If no travel warning has been issued, the employee is only entitled to refuse performance if it is unreasonable to expect him to carry out his activity in the region. In the context of weighing the interests of both parties, certain factors such as the proximity of the area of activity to the crisis area, on the one hand, and the economic interests of the employer in the provision of the service on site, on the other, must be considered. If the employer does have such a vital economic interest, the employee is only entitled to refuse performance in exceptional cases. The employee is in particular not entitled to refuse performance if there is “only” a latent risk of terrorism in the respective area.
Effects of current terror attacks in Europe on the employer's duty of care
Employers should see the recent terror attacks in Europe as an opportunity to acquaint themselves with the obligations resulting from their duties of care and thereby carry out their responsibilities better in relation to their employees in this regard. These obligations are not new, but they are - unfortunately - becoming increasingly relevant.