EXPERTISES - CORPORATE RISKS

Duty of care

16 Janvier 2018 Par Marsh
 (photo: marsh)

The legal and moral responsibility that employers have to ensure the health, safety and wellbeing of their employees in the workplace and while travelling abroad.

According to the Luxembourg Act of 17 June 1994 and the Council Directive 89/391/EEC of 12 June 1989 regarding the safety and security of employees, particularly as regards to employers’ duty of care, employers have the moral and legal responsibility, and obligation, to safeguard the health, safety, and security of their employees. An employer can be deemed to have fulfilled its duty of care obligation by doing what was reasonable in the circumstances to keep its employees safe from harm. Employers’ duty of care obligations extend beyond the typical workplace of employees such as to teleworkers, travellers and international assignees. Courts and legislation further tend to apply the duty of care obligations of an employer not only towards its employees, but also towards board members, consultants, contractors and subcontractors. Duty of care is not just about anticipating natural and human-made disasters, it is about looking at the widest range of security and safety risks and then planning and implementing the best policies to manage and mitigate them. Failure to comply with his legal obligations may give rise to civil and criminal sanctions.

These obligations increase when employees are travelling on their behalf. Employees who are travelling for work are not only at risk in those parts of the world with weak security, governance and civil order. Incidents may occur anywhere, at any time. Risks and threads range from hostile political environments, fatalities, natural disasters, exposure to disease, travel accidents, and other common travel problems.

The risks entailed by business travel are easy to overlook and underestimate. However, their impact can be significant. A breach of duty of care obligations on the part of the employer may give rise to a civil action (alleging fault or negligence) for damages or to criminal prosecution of the concerned employer. The repercussions can thus be very important and result in law suits and loss of reputation. Lawsuits filed by employees as a result of infections or diseases contracted abroad are countless.

In practice, employers can minimize their potential liability by implementing the following measures:

  • Develop and communicate to employees a complete travel management policy.
  • Organize training sessions to those responsible within the company for employee travel.
  • Set up communication systems enabling the employee to reach the employer while travelling.
  • Develop emergency procedures and response plans.
  • Ensure assistance by third party involved in risk management activities, medical and security assistance.

To help protect both the company and their employees, corporate risk managers and employee benefit managers must be equipped with the right insurance policies, support and tools to manage their risks.

Employers often have a legal obligation to take out insurance to cover certain risks. Even in the absence of such obligation, if an employer had the possibility to cover a health or safety risk by means of an insurance policy, its liability may generally more easily be withheld. In that way, Insurance offers defence against any claims of negligence or breach of statutory duties. With this in mind, the outsourcing of certain aspects to third party specialists of risk management will inevitably prove crucial in order to try meeting the required standard of care. Insurance specialists provide employers with the most appropriate balance of care and cost management.

Insurance provides companies with solutions such as:

  • Pension plans.
  • Indemnities and life insurances in case of accident (in the workplace or private life).
  • Indemnities and life insurance in case of illness.
  • Access to pre-trip medical and security information.
  • Medical response and expenses during a business/private trip.
  • Repatriation cover.
  • Luggage cover.
  • Specific covers for expats (medical expenses, repatriation).
  • Comprehensive emergency response for kidnap ransom, violent crime, threats, political upheaval.

Without speaking about the risk of claims, good-quality of duty of care can boost the company’s reputation and serve as a valuable recruitment marketing tool. Raising awareness can also support employee retention efforts. Sufficient insurance cover to protect the staff in the workplace, in their private life and during business travels may substantially positively influence employees’ ethic, absenteeism, productivity and loyalty.   

Fabienne Mathonet 
Luxembourg Office Head
Marsh S.A. | 16, Rue Robert Stümper/ L-2557 Luxembourg 
+352 49 52 38 
Mobile : +352 621 65 84 93

[email protected]