If you have business travellers within your business or just manage their movements, you need to read this article. Specifically, we examine the due diligence and legal proofs required by a business traveller or their legal counsel before they could successfully demonstrate travel safety negligence on behalf of the employer or company. By the end of the article you will know the key compliance areas to evaluate and determine if you have exposure, along with solutions on what/how to correct any shortfalls or vulnerabilities.
Legal Compliance & Terms of Reference
Many businesses talk about compliance but don’t actually know the legal and mandatory compliance regulations in which they must abide by when it comes to safety management. The universal terms of reference for most businesses, in most countries [may also apply when travelling internationally] is that of the prevailing safety management legislation. They are well developed, prescriptive and in many cases have been refined to include mobile and non-standard work environments once limited to traditional office facilities.
Safety management negligence is not a matter for civil courts or peer review boards but is criminal in nature. This means you can be measured by a judge and jury in relation to your charges and penalties are also criminal in nature. Many managers and business don’t yet understand this, nor do they understand that the past acceptance of the “corporate veil” has in many instances been removed, with specific individuals now held accountable and liable for prosecution under the safety management laws.
If a business can’t map their travel safety management systems and standards with that of the national and/or international safety management standards applicable to their business and travellers…then they have exposure.
The other key consideration for businesses is that there may not be a need for an event to have happened in order for safety negligence litigation to be levelled at an organisation. The sheer prospect of unsafe work practices and environment can be sufficient in order for criminal safety negligence to be claimed. Therefore, the pursuit of “lag indicators” to alert a business to what has happened to others as a guide for them to act is based on a false idea that there can only be prosecution after a negative/significant event, so until then, “we do what we are doing now” type of culture.
The prevailing advice and guide to work towards is that of demonstrating a “safe work system”, not just a random collection of events or coincidence used to manage the safety hazards of business travellers.
Time and time again there are requests to reference past travel safety prosecution cases for management to “consider” if it is relevant to their business. Despite this practice being a clear indication the organisation or business is attempting to “game the system” by only acting when it feels it is absolutely necessary, it is yet another false metric. Substitute travel safety with fire safety and then say aloud “well we know there are laws that say we should implement fire safety standards in the workplace….but no one has been charged yet so we won’t do anything until there is” and you might find you understand just how questionable the practice of “wait and see” is when it comes to travel safety management. A more appropriate metric is to study just how many and what type of prosecution cases there have been for workplace/occupation health and safety breaches. It is after all this law to which you are accountable to. Once you do that, you will discover there is a significant list and well developed case law history surrounding safety negligence, with many of them now applicable to business travellers as well.
A recent refinement in some jurisdictions include events or activities that could be reasonably considered as necessary and related to the work task whilst travelling. This could include such actions as eating, showering and even catching transport. If the business does not include safety management processes in these areas for business travellers, it may have exposure. Furthermore, courts have sought to remove random allegations without substance. This means that rather than just making accusations about an “unsafe work practice” the prosecution is likely to be required to demonstrate what is reasonably practicable, affordable and a complete safety management system prior to making said allegations. It is in this manner that negligence can be demonstrated to the courts and jury. Given that safety, not travel safety, is already well developed and more common place, it is not hard to see how this would be quite easy to do for most business travellers seeking to litigate their employer/company.
Travel Risk Management Standards
The expression of “risk management” is commonly used but it is not a throw away statement and in fact comes with a very specific and prescriptive procedure and compliance that must be demonstrated before a process could be considered as managed, when it comes to risk. If an organisation claims to have risk management standards, it must also be demonstrated for each journey and traveller, not a “group average”. It is for this reason that there is NO government travel advisory meets either the occupation health and safety requirement for risk management nor international risk management standard.
Travel should not have its own, unique risk management system but should stem from that of the corporate process and standards. It should be applied to each new event and specific to the work activity undertaken, as it is in other parts of the business.
A quick test for business travellers is that if the travel safety analysis provided to them based on their trip, activity and relative experience is exactly the same as provided to hundreds or thousands of other travellers [who are highly unlikely to share the exact same risk levels] then their business has failed to adequately demonstrate safety work systems specific to their journey. Substitute the activity of travel and say out loud “we understand that you are all different but we have predetermined your risk level based on 4 convenient levels to which we apply to you all, no matter how large the audience and dangerous the machine you are operating” and you will discover just how damaging this could be if challenged by a business traveller.
Vocabulary And Terminology
There are consistent and repeating terminology through out the safety management world which should also appear in the vocabulary of any compliant travel safety management system, which would constituted a safe work system. Some of these terms include Officer, PCBU, foreseeable risk, context, compliance, due diligence, control measures, hieghraracy of control, safety rating and many, many more. Not only are these terms used consistently but they come with very specific definitions and applications for providing a safe work system. Business travellers, managers and providers alike should all know this terminology and use it consistently when providing travel safety management. It has been our experience that very few in the travel management and provider space know of this terminology, let alone use and apply it for travel safety. Most disturbingly, a senior executive of an international travel management company is on record addressing a public forum stating “travel safety is really all just about common sense at the end of the day”. Common sense is not a unit of measure and the workplace/occupation safety legislation is very consistent in how it views leaving things to chance or forcing employees to make unaided, complex safety assessments in the workplace. This includes travelling.
If safety management can be demonstrated and examples of enforcement within a traditional work environment can show compliance, these same terms of reference will also be applied to the act of travel. That is, if a business routinely conducts a job safety analysis [JSA], has a written risk management procedure, enforces standards and reviews trends but has nothing similar for travel then this will be a key focus area for the prosecution. Especially if the prosecution/business traveller can show that the business has well documented and enforced processes for slippery floors, or ensures journey management plans [JMP] are completed for vehicle drives over 10 km, yet nothing comparable exists for a journey of thousands of kilometres to a new location with no consideration given to the travellers preparations….then yet again, the business will have exposure.
If an organisation references and uses expressions such as first aid incident [FAI], lost time incidents [LTI], Medical Treatment Injury [MTI], man hours, etc then they should equally apply this to travel specific events. No evidence of such tracking or numbers, especially if conducted in other parts of the business is another indicator for negligence and can be used as part of the prosecution or evidence against the business. A more more damming inditement includes the use of service providers that provide medical support services and don’t disclose or track these figures on behalf of the client or in advance of travel.
Alerts and Notifications
If business travellers receive “push notifications” whilst they are travelling but they aren’t specific to the traveller’s exact location, activity and experience then this can be used as further evidence that the business acknowledges there is a hazard/risk but has failed to provide a “fit for purpose” safety solution.
A history of non-targeted notifications, ignored messages and other push alerts will all be used as part of submission to the courts and reviewed by a jury. Travel management companies and other service providers that have rushed into this area as a service offering, without understanding the requirements and implications will likely feature in the apportioning of negligence.
Safe Work Systems
The courts, subject matter experts, business travellers and jury will focus on safe work systems and evidence of their application at all stages. It will need to see how it relates and maps to the specific legislation and terms of reference introduced as evidence. It cannot be outsourced or solved with the purchase of a product or service. From the very commencement of decision making, booking, departure and act of travel, a detailed and specific travel safety work system will need to be demonstrated, along with any performance/quality management enhancements along the way. It will also include a post journey period due to the post-travel hazards prevalent with many journeys. Even if the evaluation was “low risk”, evidence of this outcome will be equally relevant and necessary as it would be for “high risk” journeys. All the factors considerations, control measures and decision making process will also need to be both documented and evident. Any assumptions or responses along the lines of “we have a service for that” or the most ignorant statement in the travel industry to day “they are our duty of care provider” will only elevate the potential for exposure and likely negligance.
Fit For Purpose
You can wear a baseball cap when riding a motorbike but it is not adequate for protecting your head in a crash and in most developed countries it is not legally compliant either. This is the trap many businesses and travel management companies find themselves in today. They have a process, solution or service, but it is not “fit for purpose”. This means that while it may serve a purpose or convenience, it doesn’t negate a manager’s or businesses liability. More disturbingly, evidence of identification of a requirement or foreseeable risk, which a business then applied a sub standard solution [not fit for purpose] to as a means of control, is likely to heighten the liability and evidence used as part of the accused negligence. Again, say out loud “I’m concerned about the hazard of working in a confined space but I think if we just give then a torch to make sure they can see properly, it will be okay” and see if feels right or would be a feasible defence in court.
Activity Specific Safety Analysis
Safety management is primarily about the evaluation and consideration of a specific task as it relates to a work environment/machine, person and likely hazards originating from the activity. Travel safety management is a reflection of the process and methodology. Therefore, each specific journey, person, activity and location must form the basis for the safety evaluation. If not, it is neither consistent with the required process nor is it safety management based.
While the degree of analysis and evaluation may vary based on the business and the activity it cannot be short cut or substituted. Once again, evidence of “a process” but that of one which is not fit for purpose may implicate the business even more as it proves there was concern for a hazard but inadequate measures were utilised to mitigate or control the hazard and subsequent threat. This will be all the more evident if/when product related to the evaluation of other workplace hazards [slippery floors] are produced and compared to these inadequate process.
Travellers and circumstances change, which is why each journey and activity must be addresses independantly. A first time traveller to a new location is not the same as a frequent traveller to a familiar locations but it doesn’t mean that either one is of higher or lower risk until a consistent safety analysis is applied in order to reveal the necessity for action or consideration for control measures and subsequent risk management.
Procurement and Financial Liabilities
Increasingly the courts interpretation of relevant liabilities have expanded to include the financial considerations or influences engaged in the travel risk management and mitigation process. The courts are not likely to be overly onerous in their commercial expectations. For example, they would not expect a business to spend $1 million dollars in order to mitigate or remove a $1 hazard. They would however look poorly upon a decision not to spend $1 dollar in order to mitigate or remove a $1 million dollar hazard. Businesses need to know the value of the traveller, journey and impact upon the business as part of their travel safety management process.
A procurement department that procured the wrong resource or did not understand the compliance requirements will be called into question as part of the prosecution/evidence used against the company, not to mention the financial considerations and decisions used in determining the final outcome. More and more it will be these “front end” decision points that will be scrutinised and called into question that will compound or determine the final outcome.
Business Travel Expense Reports
There is nothing more telling when it comes to travel safety management negligence than that of the modern business travel expense reports. If the business traveller and business has painstakingly itemised all the associated costs for a journey, so to should the safety and risk mitigation expenditure, on a per-journey basis. As part of the litigation process, the question of “what did you spend on risk mitigation for that particular journey” will be posed. If the cost of a taxi to/from the airport can be displayed here, why not the cost of safety/risk management. More importantly, how did it compare to the routine expenditure costs associated with travel? Businesses will be in a very difficult position if they can’t demonstrate how and where they applied safety management, along with the financial cost of such measures. Especially if it is less than that of the cost of a taxi or meal for the entire journey! If travel insurance is less than a few percent of the overall cost of a journey [flights, accommodation, meals, etc] then it is likely to be palatable and accepted that travel safety management constitute 1-5% of the individual journey.
Travel Management Providers
Travel has become an increasingly personlised experience. If a travel management company has your profile, can arrange the flight of your choice, seating of your choice, accrue flier miles, book hotels in accordance with your preferences, customise your journey and deliver a uniquely coded and personal itinerary specific to you….why can’t travel safety management? It can, and there is no excuse. The have set the standard, but failed to address safety management as part of the process.
An agent, provider or manager that contributes to the safety management process that is untrained, does not apply a risk management process, doesn’t follow or demonstrate safety management standards which may/has contribute to the risk of a business traveller….then they too will share in the liability and potential for negligence.
In order for businesses and managers to better understand the problem, they need to think of it like their favourite smartphone, tablet or computer operating system. There are those that only know the features and functions of the latest version as they are new to the process. There are those that are familiar with the past few updates, but not those of years prior. Lastly, there are those that are most familiar with the original versions, and despite numerous updates still only use what they need and reference their original learning. This is has has happened with workplace/occupational safety as it relates to travel in recent years. There is a much larger demographic of business travellers that are aware of their rights, entitlements and legislation than there are managers who manage their travel safety. This remains one of the most significant risks to business travel safety for managers, businesses and business travellers alike.
You cannot insure against or outsource safety management negligence. This includes travel insurance. It is a specific product for a specific purpose, not a safety management proxy.
Walk in to your physical place of work and declare that you want to do something you haven’t done before, could entail risks in addition to being done at a place in which you are unfamiliar….and see what sort of safety management response and control measures you are presented with or require before undertaking what would commonly be considered an “at risk activity” until proven otherwise. Now say you are travelling to an unfamiliar location, to do something which you haven’t done before and haven’t been prepared for it. If you don’t have the same controls and standards applied to your travel activity then you have successfully demonstrated the business is potentially negligent in how it manages your safety, and may have grounds for litigation. Business managers, do the same but this time compare your response and systems. If you don’t have similar for both activities, we recommend you make preparations for a public court appearance at some point in the future.
This was not written by a lawyer. It should not be considered legal advice specific to your business and circumstances. Seek legal counsel for that if required. It is however based on significant analysis and experience of an array of safety standards and risk management systems used in both the prosecution and defence of companies accused of negligent safety practices.
If you have business travellers or manage their movements you need to act now. We have examined the legal framework, due diligence and legal proofs required by a business traveller or their legal counsel before they could successfully demonstrate travel safety negligence on behalf of the employer or company. You should now know the key compliance areas to evaluate and determine if you have exposure, along with solutions on how/what to correct in the event of any shortfalls.