In another post addressed the importance of applying the principles of duty of care to traveling employees as well as employees in the permanent workplace. We discussed how duty of care for traveling employees makes not just good moral sense, but good business sense as well. In this post, we will be taking an in-depth look at the legal ramifications that can arise if companies fail to fully embrace their duty of care obligations.
The first issue to address is the complex legal problems that can result if an incident occurs while an employee is on a business trip. Employees traveling internationally can fall under multiple national jurisdictions, meaning that the laws of several countries may apply to any given case. Conceivably, a firm has the potential to face legal action in any jurisdiction where it has an office. Yet, there are supranational considerations as well. Companies operating in the European Union have to understand not only the regulations of the countries they operate in, but also the laws and directives of the European Union itself. In some rare cases, a firm can face legal action in a country even when it has no presence there whatsoever. For example, an employee of a Kuwaiti company was able to seek damages in British courts even though that Kuwaiti company did not have offices in the UK*.
In some countries, such as Australia and the UK, workers compensation laws can apply to incidents that occur outside the country. For instance, South African miners and a British citizen working in Germany were both able to seek damages in British courts. Even though the events occurred outside of the UK, the employees in question were working for British firms at the time and therefore able to seek redress in Britain. In the United States, things can become even more muddled as States have varying labor laws and duty of care obligations.
This is why it is important for companies to approach their duty of care obligations from a holistic perspective, and not just from the narrow standpoint of legal compliance. Indeed, it is the complexity of duty of care obligations across multiple jurisdictions that make the issue particularly burdensome. For example, a disgruntled employee is likely to pursue legal action in the jurisdiction most beneficial to his or her cause, which is not necessarily the jurisdiction the firm is most familiar or comfortable with.
Companies can also be held liable for events that many would consider acts of God. For example, a French company was found negligent for failing to take necessary security precautions after a suicide bomber killed 4 of its employees in Pakistan. In another instance, a British woman was able to seek damages after her husband was killed by Iranian bombs while working in Iraq during the Iran-Iraq war. In a different case, survivors of an American businessman were awarded compensation after his plane crashed while flying back from France. Finally, it is widely acknowledged in some jurisdictions that an employee has the right to seek damages if he or she contracts a disease or illness during business travel.
In some countries, firms face not only legal liability but criminal liability as well. There have been cases where managers have been prosecuted for failing to create a safe, secure, and healthy work environments for their employees. For example, there are laws on the books in France and Spain that allow the criminal prosecution of employers who do not live up to their duty of care obligations. Under the British Manslaughter Act, a firm may suffer criminal penalties for negligence if an employee is killed while working outside the home country. In one instance, an Australian CEO was criminally convicted after an employee was killed at a worksite for failing to provide a safe work environment.
It is also important to note, that employees on business trips may be better placed to claim damages than employees operating out of the permanent workplace. This is because employees are often considered to be “at work” for the entirety of their business trip. For example, an Australian employee was able to receive compensation for a back injury he suffered while playing video games during a conference break. This verdict was delivered even though the employee was on a break and off of company premises. Compensation was awarded because the employee was taking that break in the context of an overall business trip, and therefore the company was held liable. In a similarly bizarre episode, an American employee was able to claim workers’ compensation after slipping in the bathtub of the hotel he was staying at while on business.
To conclude, this article has attempted to detail the legal hazards and complexities of a company’s duty of care obligations for its traveling employees. The intent of this article is not to scare managers away from sending employees on business trips. Rather, its goal is to get firms and their managers to think about travel risk management in a holistic and comprehensive manner, as opposed from a narrow and legalistic one. In order for firms to limit their legal liability from employee travel, they should work with travel risk specialists who have a myriad of tools to ensure that employees have a safe, secure, and healthy travel experience.
*This occurred because the Kuwaiti company had drafted the employment contract with the British employee in England. This provided the British courts with the justification to preside over the issue.
Sources and Further reading:
- Duty of Care of Employers for Protecting International Assignees, Their Dependents, and International Business Travelers, 2009. By Dr. Lizbeth Claus.
- Duty of care and travel risk management global benchmarking study, 2011. By Dr Lizbeth Claus