Page 14 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM ENGLAND AND AND WALES
SENDING WORKERS ABROAD:
A A A A A A PERSPECTIVE ON THE EMPLOYER’S DUTY OF CARE IN HEALTH SAFETY & SECURITY MATTERS
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DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS • I I I INTRODUCTION
In the the the current marketplace global travel is becoming the the the norm with more employers than ever before sending their employees abroad The graduates who form part of the the the millennial generation are keen to work outside their home country1 suggesting that there will be even more demand from employees for for international postings going forward However the the the risks involved in in in in in in posting posting employees abroad are also on the the rise Recent world events have shown the increased increased risks associated with global travel: from from aviation disasters disasters to to an an increased increased risk risk of terrorist activity from from natural disasters disasters to to pandemics such as as as as the the Ebola outbreak outbreak in in in in West Africa in in in in 2013 and and the the the MERS outbreak outbreak in in in in South Korea earlier this year there is is is an an inherent
risk involved in in in in in sending employees to work work in in in in other jurisdictions Every 15
seconds a a a a a a worker dies from a a a a a a work-related accident or or or disease and in economic terms the International Labour Organisation has estimated that 4% of of the world’s annual GDP is is lost as as a a a a a a a a a consequence of of occupational accidents and diseases2 Of course not all of these accidents take place while employees are are working abroad but if employers are are are are going to build a a a a a a a a a a a a a a a borderless workforce against this backdrop it it is is critical that they they are are are aware of the the the the the duty they they owe to protect their employees from harm both in the the the UK and abroad All employers employers in England and and Wales owe owe a a a a a a a a duty duty of care to their employees However not all employers employers realise that this duty duty of of care continues to to to exist – – oftentimes to to to a a a a a a heightened extent – – when their employees are are sent to to to work in in other jurisdictions In In a a a a a a a a benchmarking survey survey carried out by International SOS more than 600 global companies companies were surveyed Although 95% of of these these of of of these these companies companies said that they sent their employees to to high-risk locations to to work approximately one third of of the the the the the the the respondent organisations stated that they they did not know whether they they they had legal requirements or or owed a a a a a a a a a a a a duty of care towards the the the the the employees that they they were sending abroad3 This note is is intended to provide an overview of of the duty of of care owed to employees who are deployed from England or Wales to work in another jurisdiction either on on a a a short-term basis (e g g g a a a a a a business trip) or as part of a a a a a a longer-term arrangement such as as an international assignment or secondment This note covers the the the position under the the the laws of England and and Wales (in force at the the the time of of writing) only and does not address the legal rights of of British nationals nationals (or nationals nationals of any other country) who are employed by local employers in countries other than England and and Wales II THE DUTY OF CARE AND ITS ORIGINS
Under the Health and Safety at Work Act 1974 employers owe a a statutory duty to ensure the health safety and welfare of every employee4 There is also a a a a term of mutual trust and confidence implied in every employ- ment relationship As a a result of this term employers have a a duty to provide their employees with among other things a a a working environment that is suitable for for the the performance of their duties Additionally employers have a a a common law duty duty to take reasonable care for their employees This duty duty has arisen through the UK case law law system and it is is is this common law law duty of care that is perhaps most frequently cited by employees when when things go wrong when when they are working abroad The common law duty of of care has formed the basis of of two high- pro le cases brought in in the the UK courts against the the employers of two British men who were fatally injured while working abroad We will focus on on the common law duty of care in this note THE THE FUNDAMENTAL
PRINCIPLES OF OF THE THE COMMON LAW DUTY OF OF CARE A A A duty of care can arise in in in various circumstances including between an an an employer and employee provided that the following elements are present: • a a a a proximate relationship between the parties • foreseeability and • causation WHERE AN EMPLOYEE IS WORKING ABROAD THE DUTY DUTY OF CARE MAY INCLUDE A A A DUTY DUTY TO ENSURE THE EMPLOYEE’S SAFETY WHILE IN TRANSIT