Enabling business worldwide. Employers Duty of Care During Foreign Assignments. Duty of Care With. Perceptiveness

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1 Employers Duty of Care During Foreign Assignments Enabling business worldwide. Duty of Care With Perceptiveness

2 General Information The following guideline, which is based on the paper of Prof. Stephan Edenfeld, Neue Zeitschrift für Arbeitsrecht, p. 938, does not constitute legal advice nor does it lay claim to completeness. Foreign assignments of employees must be assessed on a case to case basis. Therefore, either consult specialised jurists for individual advice or contact a reputable consulting firm.

3 Legal Regulations in Germany, Austria and Switzerland The duty of care refers to the duty of the employer to ensure the well-being of employees. In Germany, the duty of care results from sec. 214 (2) and sec. 617 to 619 of the German Civil Code (BGB) as a collateral duty of the employment relationship. The employer is therefore obliged to ensure working conditions under which employees are protected from threats to their life, health and physical integrity. If the employer culpably violates his duty of care, he is liable for damages according to sec. 280 of the Civil Code. In Austria, the duty of care is regulated by sec of the Austrian Civil Code (ABGB) and sec. 18 of the Austrian Employee Act (AngG). In Switzerland, there is no legal regulation of the duty of care. The duty of care is derived from the protection of personal rights, which is regulated by the Swiss Civil Code (ZGB) and concretised for labour matters in the Swiss Code of Obligations (OR), art Martin Weinhardt

4 Fundamental Problems of Foreign Assignments Scope, Limits, Legal Basis The scope and limits of transnational duty of care can be considered a legal grey area as there are hardly any legal precedents or practically oriented dispensation of justice. Furthermore, the general formulation of the law of obligations in sec. 241 (2) of the German Civil Code leads to significant difficulties in determining the contractual duty of care in individual cases. In the event of damage or loss, the employer bears the burden of providing evidence and proof that the damage would also have occurred had proper instruction been provided. If the employer draws upon third parties (e.g. service providers) for the fulfilment of his duty of care, he is liable for their failure according to sec. 278 of the Civil Code. In relation to foreign assignments, the employees liability defined in sec. 254 of the German Civil Code, according to which the employee is (partly) liable for his failure in cases of medium or gross negligence, is subject to limits that must be determined on a case to case basis. In accordance with the principle of proportionality, safety measures for foreign assignments must be appropriate, necessary and reasonable, which leads to a highly difficult weighing of interests. The employer cannot confine himself beforehand to referring employees to certain foreign institutes, embassies, other government agencies and service providers to gather detailed information; this is generally only possible in cases of appropriate reasonableness. On the one hand, enterprises that post employees abroad are faced with considerable liability risks; on the other, foreign assignments must be assessed on a case to case basis, i.e. the intensity of the duty of care is determined by nature and duration of the assignment, the country of destination and its risk profile.

5 Fundamental Problems of Foreign Assignments Conclusion Despite the lack of generally valid regulations, the basic principle is that, under consideration of the working and living conditions prevalent at the employee s destination, the duty of care on behalf of the employer increases the more foreign the place of work is regarding political, cultural and social aspects and the more dangerous the place of work is according to its risk profile.

6 Duty of Care of Employers Before Departure The employee is to be informed on issues relating to tax and social security laws. The employer has to support the employee in procuring required documents and help with travel formalities. The employee is to be informed on security-relevant and medical risks prevalent at the destination (e.g. terrorist or criminal risks, recent epidemics) that may endanger health and life of the employee. The employee is to be advised in terms of travel medicine, including a verification of vaccine protection and the encouragement of the employee to undertake required vaccination measures. If necessary, the employee should undergo a medical fitness test (see, for example, G35). If necessary, the employee should be provided with security consulting or appropriate training, e.g. for travels to risk and crises areas. Whether the employer must provide its staff members a special security training or even oblige them to attend such a coaching always depends on the circumstances of the individual case. In the event of damage, however, a considerable risk of liability is imminent (see burden of providing evidence and proof). Such travel advice is indispensable if the place of work is located in an environment foreign to the employee s culture (e.g. travels outside Europe). At such locations, an everyday work routine that would be safe in Germany, such as the continual departure from the hotel at the same time of day, can make an employee predictable and render him an easy target for criminals. The employee is to be informed in due time on changes of the legal and security situation in the country if these bear discernable consequences to the traveller in question. The employer must effect the necessary insurances for his employees (e.g. international travel insurance, accident insurance).

7 Duty of Care of Employers During the Assignment The employer must inform the employee in due time on changes of the legal and security situation in the country if these bear discernable consequences to the traveller in question. The employer is not categorically committed to establish parallel structures within his enterprise which monitor every action of the employee abroad. The employee s receiving a warning noticeably late, however, is to be judged differently. In this case, an enquiry, status request or warning telephone call from Germany may be imperative if an advance of knowledge is attainable in this country. The employer cannot justify himself with the claim that the employee could have informed himself or by attributing an incident to a general risk of life. The employer must provide the employee with a contact person for emergencies. It can be assumed that also smaller companies can be expected to engage an external service provider or external emergency hotline. The employee must indeed always ask himself whether he could have prevented actual damages through reasonable actions or inactivity; this especially concerns the irresponsible treatment of personal belongings or the employer s property in areas with a high risk of theft as well as the after-hours frequentation of dangerous city districts. The distinction between the duty of care on the part of the employer and the duty of diligence of the employee and his private risk of life is difficult and therefore laden with liability: is the employer obliged to call attention to certain dos and don ts for foreign countries (driving local cars that are not marked with company logos, not displaying company identification), or can a mode of conduct appropriate to the situation (not wearing expensive wristwatches or flashy clothing, etc.) be considered a matter of course and accordingly be demanded by employers?

8 Conclusion and Recommendations Duty of Care with Perceptiveness The German employer is obliged to an increased degree to provide care for his employees. Given the threat to employees, special demands must be placed on security measures. The principle of proportionality applies. Appropriate and necessary steps are to be initiated before, during and after the assignment. On the other hand, the duty of care abroad is also set within limits. An inherent boundary is the employee s privacy, which is not included in the employer s obligation of protection. The employee is also involved in an increased duty of cooperation. He is to avert damages to his legal assets through attentive and responsible behaviour. This results from his duty of diligence in personal matters and not least from his obligation of loyalty to his employer. Foreign assignments must be assessed on a case to case basis. Therefore, either consult specialised jurists for individual advice or contact a reputable consulting firm.

9 Contact Mr Jan Frenzel, Manager Advisory Group Operational Focus Travel Security, Risk Consultancy, Crisis Management Byk-Gulden-Str Konstanz Germany Phone: +49 (0) Web: