Under the Health and Safety at Work Act 1974 (HSWA), employers have a statutory duty to take all reasonably practicable measures to protect workers from risks to their health and safety whilst at work.
However, HSWA also places duties on employees as well as employers. Workers must take reasonable care for their own safety and the safety of others affected by their work activities.
These two fundamentals are, in a way, the bookends of a white paper just published jointly by the International SOS Foundation and Scottish law firm Burness Paull.
However, the main focus, as one would expect, is on the employer’s duty of care; in this case the context is working abroad.
In just a few pages, the white paper succinctly maps the multi-layered duty of care required by Scottish companies for workers travelling on business and overseas assignments. It also provides guidance on risk aversion strategies designed to improve working conditions worldwide.
It highlights the legal responsibility of organisations to ensure the health, safety and security of workers is safeguarded at all times.
Tim Willis, security director UK & Ireland at International SOS warns: “Scottish companies need to be proactive and conduct thorough risk assessments before sending workers abroad.
“By providing a jointly developed paper with the legal experts at Burness Paull, we are able to provide organisations with trusted best practice in the planning, preparation, support and debriefing stages of a successful business assignment.”
The study reflects on existing legislation such as the Health and Safety at Work Act 1974 (HWSA), as well as those coming into force in 2017. This includes the ability of Fatal Accident Inquiries (FAIs) to investigate the deaths of Scottish nationals killed while working abroad.
The paper states: “Breach of these duties will often lead to a requirement to pay compensation to the employee for injuries sustained but increasingly employers are also being held criminally liable. Scots criminal law generally does not extend to offences committed out with Scotland but because offences under HSWA relate to poor management of risks, the offence may occur in Scotland even if the consequence of that is an incident abroad.
“This means the company and the individual manager responsible could face prosecution in Scotland if a worker is exposed to a foreseeable risk of harm whilst working abroad.
“Due to a change in the law in Scotland from Spring 2017 Fatal Accident Inquiries will be able to investigate the deaths of Scottish nationals killed whilst working abroad.
“Whilst Inquests and inquiries are not intended to be fault finding or establish blame, the evidence which may come out of such an investigation can establish a basis for a separate criminal prosecution.”
Established common sense also comes into play, witness that the paper points out that an employer cannot delegate the duty of care to another party simply because the employee is working at another’s premises.
But that does not let the employer off the hook.
“Even where the employer has little practical control over the arrangements in place at a third party’s premises, the duty to take all reasonably practicable steps (under HSWA) or reasonable care (under common law) still exists.”
Relevant case study evidence is highlighted too, including the landmark Palfrey v Ark Offshore Limited, which found in favour of the deceased oil worker’s family after he contracted malaria in West Africa.
The verdict was that the company failed to take reasonable care to ensure his safety.
However, as indicated above, workers have responsibilities too.
“In particular workers have a statutory duty to comply with any requirements imposed by their employer in order to ensure their health, safety or security, whether at work in the UK or abroad,” says the paper.
“For that reason it is important to provide workers with a copy of the risk assessment relating to their travel and working arrangements and with adequate guidance on the precautions to be taken including any health and safety requirements they need to comply with during the assignment abroad.”
Last but not least, the paper also explains the essential checklist of health and security measures that make up International SOS’s Travel Risk Management Toolbox that may already be familiar to some Energy readers. This is a seriously essential checklist of health and security risk measures that organisations can use to help fulfil their responsibilities to their mobile workforce, in order to reduce the risks facing international assignees.
