Please note – the views in the following feature are those of the author and are not necessarily endorsed by Safe Travels Magazine. Before travel, we recommend that you always do your own research, read travel advisories and buy appropriate travel insurance.

Duty of care is a hugely important aspect of business travel. The concept has been around for many years, yet aspects still remain hard to define. In our duty of care series, we will be exploring different facets and factors – providing you with food for thought along the way.

In this first piece, Andrew Brown offers an overview of the topic and sets out the matters we will be returning to in the course of the series.


Andrew B Brown – Independent Consultant + Hostage Negotiation Expert

Email: andybrow7@aol.com
LinkedIn: https://www.linkedin.com/in/andrew-b-brown-00148024/
Twitter: https://twitter.com/AndyBro07054822

 

Chief Inspector (retd.) Andrew B Brown is an internationally renowned negotiator with specialist knowledge and experience in dealing with kidnap for ransom and hostage/crisis incidents, particularly in maritime environments; in designing conflict de-escalation skills for military operations and acting as an expert witness to judicial inquiries on the response to hostage taking, specifically the Lindt Café siege, Sydney, Australia.


An Introduction to Duty of Care

What is Duty of Care?

Perhaps the best way to understand Duty of Care is to take its definition from the Collins English Dictionary, where it is described as “The legal obligation to safeguard others from harm while they are in your care, using your services, or exposed to your activities”.  Commonly this is viewed as an employer/employee relationship whereby employers have a duty to keep their employees safe. It is important to understand that there is also an equal obligation on the employees to keep themselves safe from harm too.

Who is liable and for what?

From an employer perspective, this means taking all steps that can be reasonably foreseen to protect the health, safety and wellbeing of their employees. As you might expect this can be wide and far-reaching, but it must also be proportionate to the risk that the employee is exposed too.

Employers must comply with all relevant legislation, particularly in relation to health and safety and employment law, and must be cognisant of the moral and ethical duty towards their staff. As a bonus, employees that feel supported invariably are more productive and loyal towards their employers.

Employees must not expect employers to be able to do everything and to cancel out all of the risks – some of this responsibility falls to the employee. For example, if you have been briefed, had the proper training and are deployed to say a country where drinking alcohol is forbidden by law, then going out, getting drunk in a public place and then being arrested is clearly outwith the control of your employer, especially if you have been properly prepared. Employees have a clear duty of care towards themselves.

How is Duty of Care liability decided? Is there specific legislation, or does it come from case law, or a combination of the two?

This is a vast and complex area that mainly falls under the remit of Common Law, although there is specific legislation under Health and Safety and more recently the Corporate Manslaughter and Corporate Homicide Act 2007.

Within England and Wales in tort law duty of care is defined as a legal obligation, which is imposed on an individual requiring adherence to a standard of reasonable care while performing acts that could foreseeably harm others. In Scotland, negligence is part of the Scottish law of delict and is subject to a threefold test to establish whether: a duty of care existed; whether it was breached through carelessness or lack of reasonable competence and that any such breach caused harm.

The court in defining what is reasonable will look at published standards for the activity involved and may seek expert opinion to determine what is ‘reasonable’ in the given circumstances of the case or to determine what is ‘reasonable competent practice’.

As you would expect precedents are set by

some court cases and become what is referred to as Case Law, which help to inform both legal proceedings and employment practice.  You will find case law in almost every sector and some that are worth further research are:

  • Dennis v Norwegian Refugee Council
  • Dusek v Stormharbour Securities LLP
  • Cassley v GMP Securities Europe LLP
  • Durnford v Western Atlas International Inc.

In some extreme cases where the death of an employee has resulted from a lack of duty of care, organisations might find themselves subject to the Corporate Manslaughter and Corporate Homicide Act 2007This sets out that: “An organisation to which [Section 1 of the Act] applies is guilty of an offence if the way in which its activities are managed or organised causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”.  This legislation is aimed primarily at the senior management of organisations.

What does good Duty of Care compliancy look like?

Specifically from a traveller perspective good duty of care should look like the following structure:

  1. Health and Safety Policy – this defines the mission statement, organisation, responsibilities and arrangements for the Organisation. In its implementation it should show processes and plans on how to deal with travel related issues and have mechanisms to ensure compliance.
  2. Risk Assessments for Identified Risks and
    Hazards
    :

    1. Information and Advice – in pre-travel this would include access to medical and security information, destination guidance (local, cultural, medical and security alerts). During travel you would want access to 24/7 medical and security information and know how to access competent medical care. After travel you want to know how to access medical or post trauma advice if you have encountered anything during your travel.
    2. Competence and Training – Proper briefing on health, personal safety and security arrangements; specific training for the destination and first aid training.
    3. Fitness to Travel – pre-travel medical if appropriate, and pre-travel consultation to ensure vaccinations are current.
    4. Travel Health and Security Kits – provision of a travel medical and security kit and stock of prescription medication, especially if the travel is long term.
    5. Medical and Security Emergency Management – prepare emergency action plans to manage a medical, security or an emergency event. Provide training on these plans: it is vital to know what to do and when.
    6. Tracking and Communicating – in addition to the pre-travel briefings on medical and security, it is important that the traveller complies with the organisations travel policy. Development of a Communication Plan allows organisations to check in with the traveller to ensure that they are making their defined checkpoints. This helps to support the traveller, provide reassurance and a last point of contact in a crisis event. Always look at least two forms of communications. Tracking systems can also be very useful if the travel is to a potentially hostile environment.
  3. Evaluation – it is important to audit policies both internally and externally to ensure they are fit for purpose and that the on the ground practice is reflected in the travel policy. Complacency, a natural human instinct is the greatest danger.
  4. Action for Improvement – where learning points are identified in a debrief then continue that cycle of continuous improve
  5. ment. A small, piece of vital information given on returning from a destination could be a lifesaver for a fellow traveller about to depart.

For organisations with limited funding, you should seek out others you can collaborate with to help provide the duty of care to your employees. It is not a valid legal defence to say you ‘cannot afford all the duty of care’.

Be wary of employers asking you to sign a waiver of liability should anything go wrong, this should set alarm bells ringing. If you think you require more information and equipment, then ask for it and document your asking of it. Providing it is reasonable, there should be no barrier to the employer giving it to you.

Do Duty of Care requirements change between countries of origin?

For example, if there are two companies – one based in the US and one based in the UK – offering identical services and sending their workers to the same countries for the same work, will they have the same Duty of Care compliancy requirements?

Essentially no. Duty of Care across to globe does not change significantly from developed country to developed country. In the US where litigation is more prevalent then you are likely to see a higher level of care, but don’t be fooled by that – the UK is catching up quickly in terms of litigation.

 

What sorts of trips or situations is Duty of Care required for? (Domestic trips, overseas to ‘safe’ countries, overseas to less safe countries, etc.)

In a world that is every changing and where random acts of terrorism pop up in developed countries it is sometimes difficult to define what safe countries are. Whether it is a business or pleasure trip, it is important to take a three phased approach –

  • Pre-Travel to do your research and homework on your destination;
  • During Travel to be prepared and to know what to do if something goes wrong, and
  • Post Travel to evaluate and review so others don’t make mistakes and stay safe.

Going countries that are perhaps more dangerous it is vital to look at the landscape in terms of risk – political, security, criminal, military and police activity, levels of corruption and to be aware that this risk can change suddenly and dramatically.

Steps you can take

Having just returned from NE Nigeria to help an INGO assess the needs of the internally displaced people fleeing the violence from Boko Haram, I diligently followed the advice above, carried a ‘go bag’ and monitored security briefings from three different sources daily as part of our planning. My ‘go bag’ had the following contents:

  • Plug adapters and surge protection
  • Power pack
  • Spare phone with local SIM card and credit
  • Torch
+ spare batteries
  • Para cord or a couple of bootlaces – used to secure equipment/room, etc.
  • Small roll of Duck Tape
  • Spare Lightweight clothing
  • Survival blanket
  • Waterproofs
  • Personal First Aid Kit
  • Sun protection
  • Multi tool and Compass
  • Malarial medicine
  • Filter Water Bottle – https://www.watertogo.eu or similar
  • Passport photographs
- may be needed for government documents
  • Copies of all travel documents – a paper copy and a copy downloaded onto a small password protected USB drive
  • $500 to $1000 in US Dollars – it is a currency accepted anywhere in the world and can get you out of trouble. Keep in a concealed money belt.

Guiding those with me on how to watch the dynamic in crowds, being more observant helped them stay safe and put them on a hockey stick learning curve in mission staff safety.

It is important to remember that the Duty of Care is proportionate, i.e. the higher the risk, the higher the duty of care. It is certainly not a one size fits all approach.

If Duty of Care changes based on case law and I have previously taken step to ensure Duty of Care compliancy, how can I be sure that I am up to date?

In a world of fake news, subscription to quality journals help to keep you up to date on developments and case law. Checking the Foreign and Commonwealth website and advice on travel is a good basic standard along with reading the broadsheets to keep abreast of international affairs.

Conclusion

With an understanding of Duty of Care, it is perhaps a quote from Rudyard Kipling’s Elephant Child that keeps me focussed:

I keep six honest serving-men

  (They taught me all I knew);

Their names are What and Why and When

  And How and Where and Who.

I send them over land and sea,

  I send them east and west;

But after they have worked for me,

  I give them all a rest.

If you can answer all these open questions in your Duty of Care preparations then you’ll have gone some way to ensuring reasonable competency in Duty of Care compliance and importantly the people that you are sending overseas feel valued and supported.

 


Chief Inspector (retd.) Andrew B Brown is an internationally renowned negotiator with specialist knowledge and experience in dealing with kidnap for ransom and hostage/crisis incidents, particularly in maritime environments; in designing conflict de-escalation skills for military operations and acting as an expert witness to judicial inquiries on the response to hostage taking, specifically the Lindt Café siege, Sydney, Australia.

Fellow of the Chartered Management and Security Institutes, he has developed advanced negotiation skills for major corporations, public policy and world class sports coaches. An executive coach, he guides people though crisis to better their lives, both professionally and personally.

His doctoral studies and experience in Afghan kidnappings have led him to research, critique and advise International Non-Governmental Organisations (INGOs) how to prepare, prevent and respond to the threat of international kidnap. He advises the Jesuit Refugee Service, Vatican State on their overseas humanitarian missions to help those in need.

A Fulbright Alumnus, he has taught advanced tactics to many law enforcement agencies including NYPD, USMS and the FBI where he advised and critiqued their response to a national maritime terrorist exercise. Published in Modern Piracy & Maritime Terrorism: The Challenges of Piracy for the 21st Century and contributed a chapter to the 5th Edition Crisis Negotiations: Managing Critical Incidents and Hostage Situations in Law Enforcement & Corrections, he remains an Advisor to the Editorial Boards of the Criminal Psychology & Criminal Investigations, the Forensic Research & Criminology International and the Crisis Response Journals.

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