The duty of care for Nordic companies
If News 5/2017 What do you need to do to meet your employer's obligations towards your employees both home and abroad?
The unexpected can happen
An employee of yours was injured and kidnapped, along with three colleagues, following an attack during a work related trip to Kenya. After four days as hostages, they were set free. Three years later, the employee sues you, his employer company, for compensation for economic and non-economic loss following the kidnapping. The case goes to court. The employee wins.
The above is not hypotheticals; it is a ruling from the District Court of Oslo in the case of Steven Patrick Dennis vs. the Norwegian Refugee Council (NRC). On the 25th of November 2015, the District Court of Oslo delivered its judgement in the case of Steven Patrick Dennis vs. NRC. The court ruled that the NRC acted with gross negligence in relation to this incident and found the NRC to be liable for compensation towards its employee.
The ruling has been discussed widely in local and international media. Internationally, some describe it as precedent setting(1), a game-changer(2) as well as a wake-up call(3) for employers sending employees on international assignment.
What has changed?
Nordic companies are becoming increasingly international(4). In Norway for instance, the 30 largest companies as of 2014 had over 75% of sales from abroad. Representing an increase of nearly 60% compared with the 1990s.(5) It is not only sales, in recent years, many of these Nordic companies have also established units abroad.
Increased international business activity by Nordic companies has resulted in a higher number of employees working abroad. Many Nordic companies have extensive experience in assigning their employees internationally, particularly in the oil and gas and shipping industries.
Employees who are sent on these international assignments face many risks and threats; in health and safety risk as well as their wellbeing, particularly to those who travel to remote areas with poor conditions compared to what they are used to in Scandinavia.
Typical examples of this include the recent unexpected outbreak of Ebola, Zika and terrorist attacks in some African, South American and European cities. All have increased the health and safety risk to employees working abroad.
Employers sending employees abroad on short or long stays must therefore take into consideration the implications, both ethical and legal of these developments to their business and the wellbeing of their employees. Duty of care is both a legal and a moral obligation for employers.
It is about the employer ensuring that the employees are adequately protected while under employment, be it at home or abroad.
Legal framework - The Working Environment Act from 2005
Nordic governments have tried to regulate the responsibility of employers sending employees abroad. In Norway for instance, the Working Environment Act from 2005 (WEA) lays down the obligation employers have towards their employees that would be considered pertinent when sending employees on international assignments.
To Norwegian authorities, one of the aims of the WEA is to secure a work environment that is both physically and mentally secure and has a welfare standard in line with the technological and social evolution in society, c.f Section 1-1.
The WEA applies to all employees performing work for an employer, both permanent and on contract. According to the WEA, the employer has to deal with working environment issues in a systematic and orderly way.
That is, the employer must put in place action plans; risk analysis, routine documents and follow-up procedures to prevent work-related illness and accidents, and by doing this achieve a safe and sound working environment both physically and mentally.
What employers can do
Broadly speaking, duty of care responsibilities can be grouped into three categories, before, during and after travel.
Before international assignment
- Ensure that the employee is suitable to conduct the work in question i.e. regarding education, training, experience, personal health in relations to occupational and destination risk etc.
- Inform him or her about the risks and dangers involved in the assignment – both related risk as well as the general situation in the destination country.
- Train the employee to avoid such risks and danger.
- Inform about how best to use their international health, travel and expat insurance in case of an emergency.
During international assignment
- Have regular contact. For employees on long term international assignment, employers should periodically follow up to ensure that their personal health in relations to occupational and destination risk is adequately protected.
- Ensure that there is a robust report structure for employees to follow. This will ensure consistency.
- Plan for emergencies. In high risk geographical areas, have an insurance coverage that is capable to protect, keep safe and inform all parties about necessary developments.
After international assignment
- Provide homecoming information ahead of employees return.
- Conduct post-assignment debriefs to ensure that employees personal health in relations to occupational and destination risk has been and is adequately protected.
- Ensure continuous learning. Contact your insurance partner to debrief and reflect on the experience.
The above shows that, as employers, duty of care responsibilities are both a moral and legal obligation what we owe to our employees.
Gilbert Kofi Adarkwah
(1) Precedent setting case: Aid worker successfully sues NGO. (2016). Radio Canada International. Retrieved 12 December 2016, from NGO http://www.rcinet.ca/en/2015/12/01/precedent-setting-case-aid-worker-successfully-sues-ngo/
(2) Game-Changer. (2016). AidSpeak. Retrieved 12 December 2016, from https://aidspeak.wordpress.com/2015/11/27/game-changer/
(3) NRC kidnap ruling is 'wake-up' call for aid industry. (2016). IRIN. Retrieved 12 December 2016, from IRIN http://www.irinnews.org/report/102243/nrc-kidnap-ruling-'wake-'-call-aid-industry
(4) Heum, P. (2013). Vekst og internasjonalisering i norske storforetak. Brage.bibsys.no. Retrieved 12 December 2016, from Brage https://brage.bibsys.no/xmlui/bitstream/handle/11250/166734/A39_13.pdf?sequence=1&isAllowed=y
(6) The Working Environment Act from 2005. (2005). Arbeidstilsynet.no. Retrieved 12 December 2016, from Arbeidstilsynet