The ongoing threat of Ebola and terrorist attacks on journalists in the Middle East bring into focus the issues employers can face when their employees work in high risk environments. Richard Nicolle looks at employers’ duties to keep employees safe.
Resources for employers with workers in high-risk environments
Carry out a risk assessment
Overseas travel policy and procedure
Guide for global employers
Reasonable care in high-risk environments
Employers have a non-delegable duty to take reasonable care for the safety of their employees and to carry out their operations in a manner that will not subject them to unnecessary risk.
The duty can extend to third party premises abroad and even to transport to and from such places. For example, in Dusek v Stormharbour Securities LLP, the High Court found that the employer’s duty extended to a helicopter trip that an employee took during the course of employment whilst on a trip to Peru, despite that fact that he had not been expressly ordered to take the flight.
What constitutes “reasonable care” will depend on a number of factors, including the experience of the employee and the nature of the work – the more dangerous the work, the greater lengths the employer will need to go to in order to fulfil their duty. Nevertheless, the law does not require employers to provide a completely risk-free workplace and employees will, inevitably, have to accept some degree of risk themselves.
From a practical perspective, this can be problematic for employers if they are unable to recruit or retain talented individuals because they are concerned about their own personal safety. Employers may have to provide monetary awards or other incentives to encourage employees to take on high-risk work.
Treating reluctant employees fairly
Employers will need to take care in situations where an employee refuses to carry out their duties or asks to leave because the work is too dangerous, as this potentially gives rise to employment law claims. The employer may have grounds to dismiss the employee for misconduct if they genuinely believe that their conduct is unreasonable.
However, if the employee has at least two years’ service, they will have a claim for unfair dismissal if the employer’s decision to dismiss is unreasonable or if it fails to follow a fair process. In misconduct dismissals, an employer will also need to conduct a reasonable investigation and believe, on reasonable grounds, that the employee is guilty of misconduct, otherwise the dismissal will be unfair.
Liability arising from failure to address concerns
Another claim that could arise from this situation is whistleblowing, which could be relevant if a worker who has spoken up about health and safety concerns is then subjected to a detriment (such as disciplinary proceedings) or dismissed as a result.
Whistleblowing is a potentially high-value claim, as there is no cap on the amount of compensation that can be awarded by an employment tribunal, unlike a claim for unfair dismissal (the compensatory award for which is capped at the lower of one year’s salary and £78,335).
An employee required to work in a dangerous environment may have a claim for constructive dismissal, particularly if they have requested greater protective measures or have asked to leave and their request has been refused.
Constructive dismissal is where an employee claims that their employer’s fundamental breach of contract entitles them to resign and treat themselves as having been dismissed and can give rise to claims for unfair dismissal, whistleblowing and/or wrongful dismissal.
An employee who suffers injury or the family of an employee who dies because their employer breached its duty of care may also have a claim for personal injury under both statute and common law.
Assessing risks and putting protection in place
Employers should observe the duties they owe their employees and follow best practice, which will usually involve carrying out suitable risk assessments to assess the nature of the risk, the likelihood of it happening and the likelihood of harm being sustained if it does.
Employees working in high-risk environments should be given suitable training on the potential risks and how best to mitigate against them.
Employers may also need to consider advice from the UK Foreign and Commonwealth Office if employees are working abroad, and provide (either directly or by engaging external consultants) protective equipment, medical advice, armed guards and/or secure accommodation and transport.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
They should also ensure that there is adequate and appropriate insurance cover in place against applicable risks, such as kidnap insurance to meet ransoms if they are operating in areas where there is a high risk of kidnapping.
Whilst requiring employees to undertake high risk work can give rise to a number of issues for employers, by putting in place carefully considered policies and systems, they can ensure that employees have adequate protection and that they minimise their exposure to any legal claims being brought against them.
