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TRAVEL RISK MANAGEMENT 2015 15
Legal Review: European Employer’s Health and Safety Responsibility for work-related international travel and assignments
1. Background: The need for Travel Risk Management
In most developed countries there is a considerable body of national regulatory legislation governing health and safety at work. While this legislation primarily operates on the territory of the state concerned, it may have efect also in respect of the health and safety of employees of undertakings based in that state but who are sent abroad on cross-border assignments.
In any event, civil obligations owed by employers in respect of the health and safety of employees and their families sent abroad on such assignments, are likely to apply regardless of the cross-border element. This means that employers may have to pay compensation in the event of death or injury.
In some states, obligations owed by employers in respect of the health and safety of employees and their families under the general criminal law may also apply on a cross-border basis. The employer could be at risk of prosecution if those obligations are broken. Apart from legal obligations in the home state of the organisation, there may be speciic health and safety requirements imposed in the legislation of the host state, observance of which will be an overriding requirement.
In the case of cross-border assignments within the EU, the legal requirements in respect of health and safety are likely to be broadly similar in home and host states, but compliance is no less important in host countries with diferent legal rules. In addition, there are powerful reputational and commercial considerations compelling organisations to acknowledge and discharge a duty of care to employees sent abroad on the employer's business. These will be particularly cogent where the cross-border assignment is to a country with limited health and safety legislation and/or enforcement, or where security is in issue for other reasons.
2. European Health and Safety Legislation
In the EU, health and safety legislation in the employment context follows a systematic framework laid down by Council Directive 89/391/EEC. This lays down a duty on employers to ensure the health and safety of workers in every respect related to work (Article 5(1)). Under Article 5(4) Member States have the option, but not the obligation, to provide for the exclusion or limitation of employer's responsibility where occurrences are due to unusual and unforeseeable circumstances beyond the employer's control or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
The Directive imposes further general obligations on employers, including prevention of occupational risks and provision of information and training, and the provision of the necessary organisation and means. There are provisions on protection and prevention covering:
• First aid
• Fire ighting and evacuation of workers
• Serious or imminent danger
• Worker information
• Worker consultation and participation and training.
The Framework Directive has been supplemented by “Daughter” Directives covering: • Workplace safety
• Manual handling operations
• Health and safety at construction sites
• Personal protection equipment and work equipment.