Death of the dream ticket

Hong Kong and Saudi Arabia were once high on the list of destinations for
mobile employees. But recent world events have shown no destination is immune
from unexpected calamity. So how do you balance employees’ welfare with business
necessity? By David Morgan and Christine Jenner

Until recently, many young professionals, especially those employed in law
or accountancy, looked on a posting to Hong Kong as a magnificent opportunity
to widen their horizons and take several steps up the career ladder at the same
time.

In recent months, however, such an opening has, no doubt, seemed somewhat
less attractive as a result of the spread of the potentially fatal SARS virus
in South East Asia.

SARS has also contributed to an issue of growing significance in a global
economy where recruitment and employment opportunities increasingly cross all
five continents: where do an employer and his employee stand when the latter is
posted to a part of the world that no longer appears to be as ‘safe’ as it used
to be?

In terms of overall fatalities, the threat posed by SARS seemed miniscule.
Yet the unknown nature of the virus – compounded by ‘doomsday’-type images on
our television screens – was sure to make people think harder about a posting
to Hong Kong or Singapore, especially if the move involved family.

Saudi Arabia is another country which, until recently, was popular with
Brits, thanks to its low living costs and enviable climate. Although a strict
Islamic state and not a free-market economy like Hong Kong, Saudi used to be
thought of as perfectly safe for Westerners, as long as they showed due respect
for the nation’s culture. That all changed with the emergence of Osama bin
Laden, the Iraq War and last month’s fatal terrorist bombing of an expat
compound in Riyadh.

Nigeria has not been thought of as particularly dangerous either.
Nevertheless, just a fortnight before the Saudi attack, we learned that British
and other Western oil company employees had been taken hostage by local workers
after a pay dispute got out of hand.

Some British employers have no alternative but to post specialist workers to
parts of the world that might be deemed medium- to high-risk in terms of
personal safety. But recent events show that even the most unlikely locations
are not immune to the consequences of unexpected events.

Employers with foreign interests should therefore consider reviewing their
policies and clauses in employment contracts for employees working abroad,
especially as this could be the beginning of a trend that will cast doubt on
destinations previously considered entirely safe, or at least low-risk. What
happens if an employee refuses to go, for instance, or resigns after being
given an ultimatum?

Employers are probably still in a strong position when a disagreement
involves an employee whose regular posting or travel is inherent in their
contract. Any reasonable employer will want to be sensitive to the
apprehensions of their globetrotting staff – especially valued ones. But if,
having weighed up the situation, you decide to dismiss an employee for refusing
to move to a particular locality in accordance with their contract, they would
find it difficult to claim unfair dismissal afterwards on the grounds that the
terms of employment had been breached.

However, employers may be on less firm ground is when it comes to workers
who travel abroad less regularly. The problem is that a contract of employment
can be eroded by a concept which, in legal jargon, is called ‘custom and
practice’.

The key risk for an employer here is of a worker jumping ship following an
instruction to travel, resigning and claiming constructive dismissal by reason
of a breakdown in trust and confidence. They may be able to argue that foreign
travel was not, in practice, a contractual requirement. It is with these
circumstances in mind that a review of employees’ contracts of employment may
be appropriate.

If you do anticipate the need for sending staff abroad, however
infrequently, you would be well advised to ensure contractual overseas mobility
provisions are enshrined in the contract with the employee’s consent, following
due consultation. Also, remind staff in writing of these contractual provisions
if necessary. For longer-term postings, there is a statutory obligation on the
employer to indicate in statements of principal terms and conditions of
employment that an employee is required to work outside the UK for periods in
excess of one month, if that is to be the case.

Firm policy

Of course, SARS was never a full-blown epidemic, having affected just a tiny
fraction of Hong Kong’s teeming millions, nor is Saudi Arabia necessarily a
cauldron of instability despite the recent terrorist attack. It is likely that
most employees – in particular more senior personnel – will continue to accept
a tour of duty in these places if there is a job to be done.

Nevertheless, any plan to send employees on routine, short-stay business
trips to any high-risk – or potentially high-risk – regions should consider not
just following Foreign Office or World Health Organisation advice, but
publicising a firm and unequivocal company policy as to what support the
employee can expect should something go wrong. This should cover, for example,
hospitalisation, treatment, quarantine and counselling.

This could mean carrying out risk assessments for employees returning from
SARS-infected areas, and perhaps monitoring their health for a period of 10
days from their return.

Employers could consider possible psychological effects on staff of trips to
potential hotspots. It is self-evident that business people caught up in
incidents such as kidnap, suicide bombing or shootings will need assessment and
possibly counselling to minimise the possible psychological effects, such as
post-traumatic stress disorder. But it is possible that even living and working
under the constant threat of such events could lead employees to experience
harmful levels of stress and anxiety, perhaps leaving employers open to
personal injury claims.

While this is a more tenuous legal risk, in order to guard against liability
and stave off claims by more inventive employees, you may wish to carry out
risk assessments specifically in relation to such hazards. A belt and braces
approach may couple this with returning-home interviews to gauge employees’
state of mind and – in line with recent court authority on ‘stress at work’
claims – counselling linked to treatment if necessary.

This might seem a little over the top for hardened business travellers well
used to looking after themselves. But it is not only about safeguarding the
employee – it is about being seen to safeguard the employee in an increasingly
turbulent and unpredictable global climate. It could be vital in the event,
however remote, of a dispute.

David Morgan is a partner and employment solicitor with the commercial
law firm, Burness

HR reaction to threats

– More than 21 per cent have moved
employees from areas of conflict to a safer location

– 18 per cent have brought staff home.

– 17 per cent are beefing up internal and external security

– 30 per cent are doing more local recruiting

– 28 per cent are using more telecommuting

Source: CIPD

Questions and answers

Christine Jenner gives the lowdown on
the various legal duties connected with business travel

What duties does an employer have
in relation to the health and safety of business travellers?

The UK’s health and safety at work legislation, primarily the
Health and Safety at Work etc Act 1974, does not apply to employees working
abroad, though the HSE says as far as possible it expects employers, as a
matter of good practice, to safeguard their workers’ health and safety overseas
to the same extent as they do in the UK.

In strictly legal terms, the employer has a common law duty to
take such steps as are reasonably necessary to ensure their business
travellers’ safety. The occurrence of illness or injury will not make the
employer liable. However, if an employee is injured or falls ill as a result of
your negligence, you could be liable. The employee would have to prove that it
was your actions or omissions that caused them to be harmed, and that any
reasonable employer should have foreseen harm of the type they suffered.

Be as well-informed as possible about the dangers of travel to
the places in question – in the current climate it is dangerous to assume
anything. The Foreign and Commonwealth Office provides advice on whether or not
to travel to a particular country or part of a country, and what issues and
risks you should be aware of when there (www.fco.gov.uk).  

You should also visit the World Health Organisation and
Department of Health websites at www.who.int and www.doh.gov.uk. You may need
to defer or cancel work trips if the Government advises against travelling to
the area concerned. If you ignore this advice and insist employees travel, you
risk claims for negligence and/or constructive dismissal.

In addition, employers who have staff working in foreign countries
need to ensure they adhere to the health and safety legislation of the
countries they are in. For further information on what their local obligations
are, employers can contact the International Occupational Safety and Health
Information Centre based within the relevant country.

What sort of damages could we be
liable for?

Damages for negligence will be awarded as far as possible to
put the employee in the position they would have been in had the negligent act
not been committed. This will primarily be for loss of earnings, with an
additional amount for pain and suffering.

What preparations
should we make for employees being sent to high-risk areas?

Provide as much information as you can about the risks
employees may encounter BEFORE they agree to travel. In some cases, you may
need to provide additional health or safety training.

You can also get advice from the DoH at www.doh.gov.uk. You may
need to arrange for employees to be vaccinated or given a medical check to
ensure they are healthy enough to travel.

Will sending employees to
high-risk areas affect our insurance cover?

You are not likely to be covered against claims for negligent
exposure to risks of which you were aware or ought to have been aware. Check
your policies or speak to your insurers before sending anyone to a high risk
area to see if there are any exclusions or limitations.

Do we have a duty to protect other
employees from a worker returning from an area where there is a high risk of
contracting SARS?

You have a statutory duty to take reasonable care to protect
the health and safety of your employees while at work. Where you think a worker
may be infectious, you need to ascertain the level of risk that employee poses
to other members of staff. Carry out a risk assessment, taking into account
advice from the Government and WHO. The extent of the risk will depend on the
likelihood of the harm occurring; the potential severity of that harm; and the
number of people who might be exposed.

The risk assessment should help you determine what measures you
need to take to comply with your duties. This may mean bringing staff back from
offices in infected areas and requiring those returning from travel in
high-risk areas to remain away from work for a period of time so their health
can be monitored before they are exposed to others.

Do employees have a duty to
protect their fellow workers?

Under the Health and Safety at Work etc Act 1974, employees
have a legal duty to take reasonable care of the health and safety of
themselves and of others who may be affected by their acts or omissions at
work. They are also required to co-operate with their employer, or any other
person, to ensure statutory requirements or duties are complied with.

Christine Jenner is a solicitor in
the employment group at City law firm Macfarlanes

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