Page 17 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM or e e e e e e e e ective action in respect of health and safety Fourthly they failed failed to to conduct risk assessments Fifthly they failed failed to to subject contractors to to to selection processes requiring them to to to prove their safety standards and and ultimately they failed to put Mr Cassley’s health and safety at the the top of of their list of of priorities something that they should have done in in the the circumstances16 On any reading of the judgment it is clear that Justice Coulson took a a a very dim view of of the the lack of of steps taken by GMP to discharge their obligations towards Mr Cassley “They failed to show any leadership
or e e e e e e e e e ective action in respect of health and safety” However a a a a a critical di erence between Mr Cassley’s case and Mr Dusek’s case was was that in in Cassley there was was no causal link between the the failings of GMP and the the fatalities Justice Coulson found that even if GMP had complied with its duties and undertaken additional enquiries the accident would still have happened As such the claim against GMP was unsuccessful In both cases the employers were refused permission to appeal against the judgements This shows the the importance of of the the principle of of causation in in English law even if an employer is in breach of its duties there must be a a a a causal link between the the the breach and the the the injury to the the the employee for a a a a a claim to succeed However both cases provide an an important reminder to to employers of of the duty of of care that is owed to to employees LESSONS LEARNED FROM CASSLEY GMP was heavily criticised in in the judgment in in Cassley for e e e e e e e e ectively taking no steps at at all to to satisfy its duty of care towards Mr Cassley Even those businesses who may feel they have adequate procedures in place to safeguard their employees can learn lessons from this case especially in in in relation to the following points Policies must be implemented e e e e e e e e e e e e ectively It is not enough to have health and safety policies in place businesses must take steps to make sure these policies are actively enforced During the trial it became apparent that GMP had put policies and and standards of conduct into place but had failed to ensure these were implemented e e e e e e e e e e e e ciently This is is a lesson to to all employers to to make sure that managers understand the aims and and objectives of the the policies that they have in place and and take a a a a a holistic view when using the policies on a a a a a day-to-day basis It is is is not enough to carry out a a a a a a box ticking exercise against a a a a a a checklist real thought must be given as to whether the the objectives and requirements of the policies that are are in in in place are are being satis ed in in in practice Carry out out risk assessments Employers should carry out out risk risk assessments assessments in order to properly understand the relative health safety and and security risks that will apply to to to employees while they are abroad These need to to to be tailored to to to the the speci c c c c c circumstances of the business trip or international assignment adopting a a a a a a one size ts all approach will not be enough As part of the risk risk assessment process countrywide risks should be taken into account such as as a a a a a a a heightened risk of natural disaster terrorist activity or or or disease Local factors must also be considered for example a a a a a a a lack of medical infrastructure adequate transport or or accommodation in in the the area the the employee is is is staying or a a a a a localised risk of crime Check that local contractors meet appropriate safety standards standards Safety standards standards can vary dramatically between countries and and and working practices that would be deemed legally compliant in in one country could be considered grossly negligent or illegal in another Before sending employees abroad employers should therefore ensure that local safety standards are of the standard standard required under the laws of England and and Wales This may include ensuring the the place of work work work working working pattern working working practices and the the local workers themselves are of a a a a a a level that satis es es UK standards ALLEN & OVERY LLP 2017
Felicity Gemson - Senior Professional Support Lawyer felicity gemson@allenovery com www allenovery com 1 1 In a a a a a a a a a a a a benchmarking study undertaken by PwC 71% of the the the the graduates who responded to to the the the the survey stated that they would like to to to work internationally with the the the the the positive response rate being as as high as as 93% in in in in in graduates who responded to to the the the survey in in in in in Africa (www pwc com/m1/en/services/consulting/ documents/millennials-at-work pdf) Accessed December 2015 2 2 2 http://www ilo org/global/topics/safety-and-health-at-work/lang--en/index htm Accessed Accessed December 2015 3 https://www internationalsos com/newsroom/news-releases/duty-of-care-to-employees- is-critical-to-business-stability-reveals-new-global-benchmarking-study-nov-09-2011 Accessed December 2015 4 Section 2 2 of the Health and and Safety at Work Act
5 5 5 Wilsons and and Clyde Coal Co Co v v English [1938] AC 57
6 Smith v v Austin Lifts Ltd [1959] 1 1 1 1 WLR 100
7
Unreported High Court case 8 Durnford v v v Western Atlas International Inc [2003] EWCA Civ 306
9 Cassley v v v (1) GMP Securities Europe LLP and (2) Sundance Resources Limited [2015]
EWHC 722
10 Dusek Dusek & Ors v Stormharbour Securities LLP [2015]
EWHC EWHC 37 (QB) 11 At At paragraph paragraph 144 of of the the judgment judgment in in Dusek Dusek Dusek 12 At At At paragraph paragraph paragraph 167 of of of the the the judgment judgment judgment in in in Dusek Dusek Dusek 13 At At At paragraph paragraph paragraph 175 of of of the the the judgment judgment judgment in in in Dusek Dusek 14 At At At paragraph paragraph paragraph 217 217 of of of the the the judgment judgment judgment in in in Cassley Cassley 15 At At At paragraph paragraph paragraph 217 217 of of of the the the judgment judgment judgment in in in Cassley Cassley Cassley 16 At At paragraph paragraph 219 of of the the judgment judgment in in Cassley Cassley • DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 17