Page 18 - FlipBook_JointPaper2015

18
TRAVEL RISK MANAGEMENT 2015
In the UK, the employer's civil liability at common law does not depend on the territorial location of the employee at any given time13. For that reason, which may be thought to involve a doubtful argument, no specific implementing legislation was considered necessary to give effect to Directive 96/71/EC (the Directive on the posting of workers to other Member States) in the UK.
By contrast, the criminal and regulatory legislation under HSWA and the regulations made thereunder only have legal effect within Great Britain and on certain offshore installations and pipelines. Accordingly when offences under the Act or the regulations imply an identifiable act or location for the offence, then in general such act or location must be within the relevant national territory for jurisdiction to apply.
Nevertheless, it should be noted that many of the duties under HSWA will be breached in the event of the exposure of a person to a risk, and it is not necessary to show that an injury has actually been caused as a result. Accordingly an employer may well be potentially liable in Great Britain for a failure to conduct a suitable and sufficient prior risk assessment in respect of risks to an employee who is to be posted abroad. Moreover it should be pointed out that incidents involving employees posted abroad may incur liability under the law of the country to which the employee has been posted.14 There may also be the possibility of proceedings under the law of that jurisdiction against the employer or responsible individuals within the employer's organisation.
In addition to UK health and safety legislation, there is also the possibility of a corporate entity being prosecuted in certain circumstances under the Corporate Manslaughter and Corporate Homicide Act 2007 where the way in which the activities of that entity was managed and organised causes the death of a person. However this legislation only applies where the relevant harm resulting in the death of the person concerned occurred in UK territory, in territorial waters or on an UK registered ship or aircraft or offshore installation. The legislation would not therefore normally be relevant in the case of deaths of persons occurring while posted abroad.
4. The implementation
of a Travel Risk Management system
Although national health and safety regulatory legislation is unlikely to address specifically the requirements of Travel Risk Management in a cross-border context, the principles of health and safety management required nationally can readily be applied in that context.
a) Policy
For example, every organisation sending employees for work abroad should have a specific policy statement/guidance document setting out its requirements as regards such assignments. This should set out the responsibilities of management; the responsibilities of the employee sent abroad, the requirement for a prior risk assessment, guidance on specific practical subjects that need to be considered (see below) sources of further information, and a pre travel checklist.
b) Risk assessment
As in the case of the workplace in the home country, suitable and sufficient prior risk assessment forms a central part of Travel Risk Management.
Information for it will need to be obtained both from publicly available sources, and from specific sources within the organisation and its partners abroad regarding the proposed role and location of the employee posted abroad. The foreign services of most countries have websites with detailed and regularly updated information on particular foreign countries and the hazards that may be faced by those of their nationals that travel there. They will also contain information on local legislation and customs, observance of which will be essential to keep travellers out of harm's way.
The organisation may also chose to engage the services of a specialist security company, which may be better placed to provide up to date information on particular destinations.
Risk assessments should be carried out for each specific trip and set out the relevant activity and location. They should name the person(s) undertaking the assessment, its date and the timetable for its review. They need to list the significant hazards identified, the persons at risk, the controls and procedures etc. to be used to mitigate them, any specific actions required, and an assessment of the residual risk. They will require input from the individuals sent on the particular assignment.
fffffffffff