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Legal: increased focus on duty-of-care demands

IATA calls for strengthening of airline security

Today’s world means a greater focus on duty-of-care obligations...

We live in an increasingly dangerous world, and risk profiles for some destinations are changing. The spread of terrorist attacks affecting mainstream European destinations, as well as traditional target areas, means that the duty-of-care of an employer increases in importance. Recent health warnings about the Zika virus should concern employers sending employees to the Americas. Some 28 countries are already affected, with a threat of the virus spreading into North America. These issues place additional burdens on employers to review health and safety issues for their travellers, and to raise risk awareness. There may be potential legal claims where incidents occur, and management of employees who may be reluctant to travel to these destinations might have to be dealt with.

DUTY-OF-CARE

The traditional definition of duty-of-care (Smith v Baker [1891]) is that “an employer must carry on its operations so as not to subject those employed by it to unnecessary risk”. This includes any reasonably foreseeable risk that the employer can guard against. The employer is expected to update its knowledge of any change in risk or dangers arising with travel overseas. The overseas offices where the employee might work should be safe, and if any particular risk or danger is known, then reasonable measures should be taken to protect employees working there. The legal obligation to protect employees is likely to be set out in the domestic laws of the destination country as well as under English law. Failure to provide a safe work place might give rise to liability in civil claims, and to criminal liability when the laws and regulations are ignored.

While employers’ risk management should be proportionate and not unnecessarily costly, employers should have written procedures in place to cover known risks and they should carefully monitor changes or developments.

So what should the corporate employer do? Not all risks are the same. In some cases it may be the availability of security at hotel accommodation or advice about dangerous local areas to avoid, the ability to track employees and the ability to obtain enhanced intelligence where the risk profile may change quickly. Some factors to consider are:

• The preparation of a risk assessment taking into account the known risks and how this can be communicated to the business traveller.

• Ongoing monitoring using publicly available websites such as the Foreign and Commonwealth Office, ABTA (the Association of British Travel Agents) and the Department of Health, as well as the employers own local intelligence.

• Consideration of an emergency repatriation plan if matters become unsafe or dangerous.

• Insurance cover, which can include risks such as asset protection, kidnap and ransom, war risk and repatriation.

REFUSAL TO TRAVEL

English employment law is likely to apply to travellers working here who are asked to travel overseas. An employee might refuse to travel to a country affected by particular risks. If the risk is high, it may be unreasonable to discipline the employee or terminate their employment. The latest medical and safety information should determine whether decisions made are reasonable or not. Similarly, managing an employee refusing to go to their place of work due to safety and risk will depend on the facts of each case and whether that refusal is reasonable.

The leisure travel sector often takes the lead with decisions regarding allowing people to change their holiday destinations because of safety and when travellers may receive a full refund if they wish to cancel. This has been significant since the terrorist attacks in Tunisia and Egypt and, currently, some tour operators are allowing passengers to change holidays from areas affected by the Zika virus.

The business traveller is often not given these choices. Employees need to carefully consider the consequences of any unreasonable refusal to travel to a particular destination when risk arises, and employers must consider the decision to send the traveller to certain countries in the first place.

Ian Skuse is a partner in Blake Morgan’s Aviation team (blakemorgan.co.uk) and is based in their London office. Ian was a partner with Piper Smith Watton LLP, which merged with Blake Morgan LLP in August 2015.

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