Legal: perils near and far

Assessing risk in far-flung locations is crucial, but there are plenty of regulatory challenges closer to home…

IT IS NOT ONLY HOLIDAYS TO exotic high-risk locations that require careful scrutiny about personal safety before travel. Many employees are requested to work in overseas locations where personal risk many be much higher than in the UK. It is the responsibility of the employer to continuously evaluate any risk to personal safety of the employee, and the employee must exercise reasonable care. While many contracts of employment will contain provisions requiring the employee to work overseas, an individual employee may be entitled to refuse to travel to a country on business where the risks are perceived to be high.


Employers should seek their own advice to establish the level of risk for employees, including media coverage, any FCO advice relating to current risk and any change where safety may be an issue. A prudent employer will prepare briefings with the latest information and provide details of how to contact government officials, if a problem arises. For some high-risk areas, training is available which can help with kidnap and other difficult situations. The decision to repatriate employees may be a difficult one for employers, but where a situation is worsening, the employer should be seen to be acting promptly in the exercise of the duty-of-care. For the employee, in extreme situations he or she may be entitled to refuse to travel, and ultimately resign and claim constructive dismissal if his or her decision is reasonable.


While we still have two years to go before Brexit takes place (or so we are told), airlines currently face an uncertain future – particularly  those which operate routes within the EU, or depart for the EU  from the UK. The EU Open Skies Policy resulted in a number of carriers (including several low-cost) developing networks of routes between member states, while being registered here in the UK. Leaving the EU will require the UK to negotiate its own air traffic rules on a state-by-state basis, because up to now the EU has granted consents with third countries on behalf of all the member states It will be necessary for the government to negotiate bilateral agreements authorising air traffic between states. Several airlines are exploring the possibility of seeking air operators certificates from other EU states to continue their network post-Brexit. This involves an analysis of airline ownership rules and the location of airline shareholders and possible relocation of the headquarters of the airline to an EU country. These are early days, but airlines will want to have the comfort that they can continue flying their routes during and after Brexit with as little disruption as possible. Having these new arrangements in place prior to the commencement of Brexit needs to be dealt with urgently.


Many businesses are carrying out urgent reviews regarding the implementation of GDPR (General Data Protection Regulation) with a new and more stringent regime for data protection in the UK from May 25, 2018. Up until now, many involved in e-marketing have relied upon ‘soft opt in’, allowing electronic mail marketing (including text messages) being sent to an existing customer who has bought (or negotiated to buy) a similar product or service from the trader in the past, and where they were given a simple way to opt out of further emails and messages both when their details were first collected and in every email and message sent. As Flybe recently discovered, the sending of emails to millions of people who had advised earlier they did not wish to receive marketing emails can result in a hefty fine from the regulator, even if the emails only sought to verify personal contact details. The Information Commissioner’s Office (ICO) investigated both Flybe and Honda, and the airline was fined £70,000 for breach of the Privacy and Electronic Communications Regulations. These regulations are there to enforce the privacy rights of consumers. It is important for e-marketers to be aware of the level of punishment, and to ensure they comply with the regulations.

Ian Skuse is a partner in Blake Morgan’s Aviation team 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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