We address key questions faced by employers posting staff to potentially dangerous parts of the world. We look at the duty owed to them and what can be done in practice to ensure that that duty is discharged.
■ What are the main legal issues companies need to be aware of when posting staff to potentially dangerous parts of the world?
The main legal issue is what an employer needs to do to ensure that they discharge their legal duty to ensure a safe system of work to such employees.
■ Could companies be held liable for anyone who is killed or injured as a result of a foreign posting? What measures would companies need to take to prove they had done all they could to protect the safety of their employees? Are they also liable for the employees’ families if they join them?
Employers owe a duty to ensure a safe system of work to their employees – that is, to do what is reasonable in the circumstances to ensure that their employees do not suffer injury or death.
An employer could be liable for substantial sums in compensation if found negligent in failing to take reasonable steps to ensure the safety of an employee posted to a dangerous part of the world and as a result the employee suffers death or injury.
In order to discharge this duty in relation to posting staff to potentially dangerous parts of the world, depending on the degree of risk of injury or death, an employer may be expected to provide as follows:
- hostile environment training to those not sufficiently qualified or experienced (dealing with kidnap situations, checkpoint issues, responding to incoming fire etc.);
- relevant security briefings – including current Foreign Office advice on travel;
- personal protective equipment;
- medical advice, vaccinations/preventative tablets, medical kits;
- private security personnel, armed guards, secure accommodation;
- private transport arrangements;
- insurance cover; and
- relevant embassy or consulate details.
Criminal sanctions for gross negligence under the Corporate Manslaughter and Corporate Homicide Act 2007 do not apply if the employee suffers harm outside the UK, for reasons relating to practical issues in investigating the crime scene and gathering evidence outside the UK.
If an employer consents to or is aware of and does not object to an employee's immediate family joining an employee in a dangerous environment abroad, then it is likely that the employer will be liable for any loss suffered by an immediate family member as a result of a failure to take reasonable steps to ensure their safety too.
■ How can companies protect themselves in law (contracts?) from legal claims? Are there potential issues in treating ex-pats differently to local staff in this regard?
- An employer should keep evidence of an employee's attendance at relevant training and advice sessions.
- Employers should ensure that employees are aware of current risks and consent to accepting them as part of their duties.
- A risk assessment should be drawn up and adhered to.
- Insurance contracts should be checked to see if insurance cover can be obtained.
Although a contract will not exclude or restrict liability for negligence resulting in injury or death, it is helpful to ensure that an employee signs a contract providing that before performing work in dangerous parts of the world, he /she will receive hostile environment training or has suitable experience/ qualifications negating the need for such training.
In terms of training as to potential risks an employer would most likely be justified in treating those who have lived in the dangerous area previously differently from those who have not, because they are more likely to be aware of the risks.
■ Are there any legal (discrimination) issues around deciding whether or not to send women to certain countries where they might be in more danger than male staff, or perhaps in preferring to send men to such places based on the perception they will handle this better than women?
There are potential sex discrimination issues. However, depending on the relevant jurisdiction and any danger facing women there, it may be justified to prefer a male applicant to such a posting. There is a specific defence if the job needs to be held by a man because it is likely to involve performance of duties in a country whose laws or customs are such that the duties could not, or could not effectively be performed by a woman. However this defence would be narrowly construed.