Employee Legal Action Against Employer for Duty of Care Failure While Travelling for Business
Our recent discussions with a law firm, in relation to a claim that an employer failed to fulfil their duty of care after an employee was traumatised and injured while travelling for work, highlights a number of risks for both employer and employees. In particular just how unprepared a business is when it comes to travel risk management and the more developed and greater level of access to legal recourse there is for an employee, that most managers are unaware of or at worst have been ill advised.
An employee had travelled overseas for work and whilst on this trip, was physically assaulted and traumatised by the incident. There is a probability of a history or similar/related events in both the location and prior employees that have travelled to the same location.
The business allegedly provided “generic” preparation and briefings for the traveller but nothing specific to the destination, events, personal circumstances. Part of what we call travel risk management “vending machines” which generates the same old stuff for everyone was employed. Creating liability for the employer, and inadequately addressing the individual’s needs. The employee allegedly acted “recklessly” under the circumstances and did not fulfil their own duty to preserve their safety and has also possibly demonstrated negligence in their own actions.
Neither the law firm representing the claimant nor that representing the company appeared to have detailed knowledge of the requirements for a travel risk management system, plan, preparation, context, foreseeable risk, or how to prove one or the other was negligent. Both parties where “fishing” and trying to match legal facts within actions in general terms and in a very, very long winded approach. While some might say this is indicative of the legal system, there were some very definitive points and facts that would quickly and immediately demonstrate the party at fault and how duty of care was/wasn’t fulfilled.
We have said this before, but there are far more employees aware of their rights, entitlements, safe practices and established procedures than there are managers equally informed. That make for a very, very dangerous combination for employers. More and more employees will be exercising their knowledge and laying claim to employers who are not informed and those that have failed to provider personal, contextual travel risk management. Watch and see.
Advice to Employers
If your business travel systems and support do not mirror that of your workplace health and safety practices at a physical workplace/office, then you are likely to be exposed to liability and negligence. If you can not demonstrate a systematic approach to risk management, you don’t have a system at all. While there may not have been incidents or claims to date, this is not a defence. Nor is lack of knowledge on the law and regulations. If you can’t demonstrate a specific and personal approach to risk management and treatment for your employee’s travel, then you are likely to have exposure to claims and deficiencies. Regardless of where they travel. You are NOT protected by insurance for these breaches, shortfalls or liabilities. Improve your processes as soon as possible, or get very good legal counsel.
Advice to Employees
Stop accepting a lack of demonstrable or safe practices when it comes to business travel. Understand that both you and your employer have a shared responsibility. Speak with your employer, request explanation and demonstration of the system, as it relates to you specifically and the journey/trip you are undertaking. If you get a “low, medium, high” response, which is exactly the same as everyone else that asked or travels to that location then you don’t have a system at all, you have a vending machine. You are entitled to recourse, claims or compensation if you can demonstrate that an incident is possible, did happen or you were affected by and event. This applies to domestic and international travel.
Advice to Travel Management Companies
Do you know what liability and responsibility you play in the booking and management of travel for employers and employees if they are exposed to undue risk? Find out quickly. Can you demonstrate how you fulfilled your obligation and duty of care within the process, if this is assumed as part of your service? Ensure you can. Insurance does NOT protect you from this either. You might find that you assume as much, if not more, of the risk management burden than you think.
**Note** The specifics of this claim, the company involved, the legal firm and the victim remain anonymous and only generic aspects have been discussed for educational purposes.**Note**