A colleague recently raised concerns about some of our employees who are working in Algeria and other high-risk countries prone to volatility. What are employers’ duties towards expatriates working in dangerous areas and at what point should employers pull them out?Nicholas Robertson, head of employment at Mayer Brown International, says:
If an employer based in England seconds an employee to a volatile country, it is required by law continuously to evaluate the safety risks.
A UK employer must exercise “reasonable care” for the safety of its employees, including expatriates from the UK.
In one case an employee was injured while working for a third party in Saudi Arabia. The court agreed that the UK employer was still responsible for ensuring the employee’s safety.
A staff member who asks to leave because they perceive risks are high, but is refused permission, may be entitled to resign. They can then treat the employer as having repudiated the contract, and take out a claim for damages. Any post-termination restrictions end immediately.
But whether a particular situation is too dangerous will be fact specific. In one case an individual was entitled to refuse to go to a country where he had been sentenced to death.
In another, the employee refused to travel to Ireland because of concerns about terrorist activity. The court found IRA activity was so minimal in that area it was reasonable to send him there.
However, there are also English statutory rights that allow an employee to leave any place of work if there is serious or imminent danger, which might apply, too. As a broad generalisation these rights might not apply to expatriate employees unless there is a sufficiently strong connection between the UK and the expatriate employment.
The courts are still trying to work out what constitutes a sufficient connection to the UK and so the law in this area is still developing.
Employers need to take appropriate advice to establish the level of risk. This could include any Foreign Office guidance, news reports and commentary, the approach of other foreign employers in that country, and the wishes of the expatriates themselves.Susan Doris-Obando, senior associate at Freshfields Bruckhaus Deringer, says:
Employers owe a duty to their employees to ensure a safe system of work. This means doing whatever is reasonable to ensure staff do not suffer injury or die when they are posted to dangerous regions. And of course, the more dangerous the area, the more an employer would be expected to do.
Employers should ensure staff are aware of the risks in the area they are posted to and that they agree to travel there despite those risks. Training is key – for example, ensuring employees are aware of the specific risks faced in the country and how to avoid them.
Providing specific country assessments and security briefings prepared and updated by the UK Foreign and Commonwealth Office, together with details of the relevant foreign embassy or consulate, is important.
For high risk areas, employers should ensure staff undergo hostile environment training, particularly if they are not sufficiently qualified or experienced – for example, in dealing with kidnap situations and checkpoint issues.
Depending on the degree and nature of risk, employers should also consider providing personal protective equipment, private security personnel, armed guards, secure accommodation, medical advice, vaccinations and preventative tablets, medical kits, and private transport arrangements. Ensuring employees have adequate insurance cover extending to the areas in question is also very important.
If it gets to the point where an employee requests to leave a dangerous area, employers should assist as and when the request is made. Finally, employers should certainly advise the employee to leave at the point that the UK Foreign and Commonwealth Office advises them to do so.Email your career management questions to: email@example.com