The shocking news of recent airline disasters and infectious disease outbreaks brings into sharp focus for employers the sometimes unforeseeable risks facing employees who frequently travel for work. Article by Joel Davis, Senior Associate; Brett Feltham, Partner and Ute Krudewagen, Partner., at DLA Piper UK Plc.
The ability to dispatch the right employee from wherever they are, to where an employer needs them to be, has never been more common. Whether that employee is working on the ground or simply flying over a dangerous area (as a result of either armed conflict, disease or natural disaster), the employee is still performing functions and duties. Different legal risks can arise, and it is important for an employer to properly assess the resulting risk exposure. Many employers already observe common risk minimisation techniques that consider factors including: can the work be completed remotely; has advice from a security consultant been procured; and are government travel warnings monitored and followed. However, there are fundamental employment law questions that should be kept in mind when assessing that risk exposure.
What laws apply to the travelling employee?
Most employees will have contracts that contain governing or operative law provisions. However, employers should not be quick to assume that the laws of that stated jurisdiction will automatically apply or will apply to the exclusion of any laws which apply in the jurisdiction in which the employee will be working. Additionally, in some circumstances, the labour laws of an employee's home country, may have extraterritorial application. The nature of any assignment abroad will also affect which laws will apply. An employee expatriated for a longer term will invariably require a different assessment than a business traveller or an employee on short-term assignment.
What obligations under relevant laws will apply to an employer?
All employers invariably owe a duty of care to a travelling employee. The extent to which that duty can be discharged will differ significantly depending on the jurisdiction, but any such duty will normally extend beyond the employee's normal physical workplace. In some jurisdictions, failure to ensure or observe statutory and other legal requirements could result in serious civil and even criminal liability for an employer and relevant officers and employees.
Is the risk indemnified, subject to compensation cap, or can the risk be excluded? An employer should be aware of what applicable insurance policies they have in place, what policies could be activated when a disaster strikes, and the scope of any coverage. Acts of war or civil disobedience are almost always excluded. Additionally, in some jurisdictions, such as the US, personal injury lawsuits are in all but very limited circumstances barred for injuries that occur on home soil. However, for injuries occurring abroad, particularly where the assignment is longer term, any bar or cap may not apply. Some employers have also sought to include particular exclusion clauses that require an employee to relinquish or extinguish any duty owed to them by the employer, such as assumption of risk agreements. In many jurisdictions, any such exclusion could be ignored or overturned by a court or tribunal.
What practical steps can an employer take?
Employers should carefully consider the need to implement an emergency response policy. The policy should consider a range of potential scenarios, from the need to evacuate employees or to temporarily close facilities, through to the need to change employee working arrangements. Any policy will also need to cover other business issues to ensure business continuity, manage disaster recovery, or deal with any supply shortages or failures to external critical infrastructure. Allied to the implementation of an emergency response policy, employers should introduce an international travel policy requiring employees to notify their employer when they are travelling internationally, including for non-business reasons when travelling into jurisdictions which are high risk. Only by an employer knowing the whereabouts of its travelling employees will the employer be in a position to quickly respond to a disaster scenario.