Page 42 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM SCOTLAND
SENDING WORKERS ABROAD:
A A SCOTTISH PERSPECTIVE
ON ON THE EMPLOYER’S DUTIES
IN RELATIONTO HEALTH SAFETY AND
SECURITY
I THE EMPLOYER’S DUTY TO ENSURE HEALTH SAFETY AND
SECURITY
Under the Health and Safety at at Work Act 1974 (HSWA) employers have a a a a a a a a a a a a a a statutory duty to to to to take all reasonably practicable measures to to to to protect workers from risks to to to to their health and safety whilst at work work Additionally employers have common law duties to to to take reasonable care to to to prevent their employees and others to to to whom they owe a a a a a a a a a a a a a legal duty of of care from being injured at work There are are also implied duties of of mutual trust and con dence in in in in the the employer/ employee relationship which reinforce these obligations This note covers the position under UK laws in in force in in September 2016
Employees whether British nationals or otherwise may have have rights and employers may have have duties under the local laws of of the the the jurisdiction of of the the the location in in which which they are working which which may also require to be considered HSWA states that “an employee is at at at work throughout the time when he he he he is is in the course of of his employment” The concept of of “at work” has been interpreted widely and does not simply apply
o o o o o ences under HSWA relate to poor management of risks the the o o o o o ence ence may occur in Scotland even if the the consequence of that is is an an an an incident abroad This means the the company and the the individual manager responsible could face prosecution in Scotland if a a a a a worker is is exposed to a a a a a foreseeable risk of harm whilst working abroad Coroners Inquests in in England and and Wales examine the circumstances of of the death of of a a a a a a a British national killed abroad where the the body is repatriated Due to a a a a a change in the the law in in Scotland from Spring 2017 Fatal Accident Inquiries will be able to investigate the deaths of Scottish nationals killed whilst working abroad Whilst Inquests and inquiries are not intended to be fault nding or establish blame the evidence which may come out of such an an investigation can establish a a a a a a a a a basis for a a a a a a a a a separate criminal prosecution II RISK ASSESSMENT
At the the heart of of an employer’s duty is is the the familiar concept of of risk assessment Just as as with work in the the UK where the the employer is is is sending a a a a a worker oversees a a a a a suitable and su su cient risk assessment is is is an an essential element of of the the proper management of of the the worker’s safety The potential hazards to be considered in any assessment will depend on on factors such as the the the the nature and length of the the the the trip the the the the location the the the the activities to be undertaken and the the personal circumstances of the the worker In addition to hazards associated with working tasks or or or remote worksites risks may arise in relation to travel arrangements political or or cultural factors and exposure to illness or disease In some circumstances additional pre- cautions will be required when the worker returns to the UK for example where the employee has been exposed to a a risk of disease or psychological trauma A risk assessment requires to be reviewed whenever there is a a change in circum- stances and it is good practice to review any any assessment regularly in any any event when the employee is is at his usual place to to those tasks which are necessary to to An employee has been regarded as as “at work” when climbing out of bed in in a cabin on on an o o o o shore installation when travelling to or or between work locations or or visiting the premises of a client or or customer whether in the the the UK or another jurisdiction Breach of of these duties will often lead to to a a a requirement to to pay compensation to the employee for injuries sustained but increasingly employers are also being held criminally liable Scots criminal criminal law generally does not extend to o o o o ences committed out with Scotland but because of work nor is it restricted carry on a a a work activity 42
DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS •
THE THE COMPANY AND
THE THE INDIVIDUAL MANAGER RESPONSIBLE COULD FACE PROSECUTION IN SCOTLAND
IF
A A A WORKER IS EXPOSED TO A A A FORESEEABLE RISK OF HARM WHILST WORKING ABROAD