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Deliver thorough protection for your people travelling overseas FOO
You’ll remember several tragic events over the last few decades that resulted in significant damage and/or loss of life: the Lyme Bay canoeing tragedy, Herald of Free Enterprise capsize, Clapham rail crash, Transco gas explosion and the Hatfield rail disaster. Each resulted in public sympathy for the victims and a desire for the organisations involved to be made accountable for their actions or deficiencies. Historically work issues were dealt with via the Health & Safety At Work Act 1974 and The Management of Health & Safety at Work 1999.
However, these acts failed to address the issues sufficiently so the Corporate Manslaughter and Homicide Act 2007 was developed in part as a response. This replacement Act came into force 6th April 2008 and focuses on targeting the organisation not individuals. It defines the employers’ duty of care and also Gross Breach: this latter element determines whether or not ‘blame’ rests with the employer.
In this article from leading UK insurance broker Arthur J. Gallagher, we guide you through the key responsibilities your organisation has for the people in your charge, specifically when travelling overseas and to high-risk destinations.
Does the Act apply to incidents occurring outside the UK?
The Act itself cannot be applied to deaths overseas. However, a prudent organisation will want to make sure its people are protected anywhere in the world as opposed to just in the UK. The reputational impact could be as serious as any prosecution after all. So it’s important to remember the Offences Against the Person Act 1861.
This allows for individual directors to be prosecuted and convicted of manslaughter in an English court even if the offence itself took place overseas. Basically this old Act overrides the general rule that someone may not be tried in an English court for a crime that occurred outside England and Wales (one that includes homicide and manslaughter).
New international standards are emerging like OHSAS 18001 - an international occupational health and safety management system specification that is a useful guide to what is an acceptable approach for ensuring the well being of your people. This standard comprises two parts - 18001 and 18002 – and can help organisations reduce the risk of disasters occurring and provide enhanced evidence that could form a legal protection should the worse happen.
What protections apply to humanitarian or charity workers?
The legal foundations are the Geneva Convention 1949 and the Protocol of 1977 that describe a civilian non-combatant and their rights and obligations during conflict. These rights are well known – like access to food, humane treatment and access to medical treatment. However, the Convention does not require that at-war parties provide security escorts or guarantee their safety – but in 2003 UN Security Council Resolution 1502 enhanced protection by stating that attacks on humanitarian workers would henceforth be seen as a war crime.
We all know aid workers are targeted for political reasons or for what the organisation they work for represents - or just because they may appear to be helping a given ‘enemy’. Sadly, aid workers are still killed or injured undertaking their jobs every year in places like Pakistan, Afghanistan, Syria, Iraq and Yemen: even UN amendments have not seemed to increase available protection by any great extent thus far.
What is the Duty of Care?
Organisations based in the UK have a common law and non-delegable duty of care to protect employees from risk and to ensure that their safety is not compromised through the negligence of the employer. Meanwhile, the employee has a responsibility NOT to compromise his or her own safety - or the safety of others. Thus both the employer and the employee have duties of care within their relationship.
Interestingly this is linked back directly to travel insurance in that some of the exclusions focus on situations where the employee does compromise their own Health & Safety – for example by drinking excessive amounts of alcohol.
Here are some practical examples of the duty of care placed on the employer. It is worth cross checking this against what your organisation does in practice.
- Provide a safe working environment (including hotels, airlines and rental cars).
- Provide information and instruction on potential hazards and threats.
- Provide supervision to ensure worker safety.
- Monitor the health and safety of employees.
- Employ competent persons to provide health and safety advice.
- Monitor conditions at all locations under your control
- Maintain appropriate employee records.
And the higher the risk to which the employee is exposed, the higher the duty of care of the employer.
Ruling of Gross Negligence of 25/11/15
Recently the Oslo District Court ruling on Steve Dennis v. Norwegian Refugee Council (NRC) provided pause for thought for all organisations working overseas. Here the NRC was judged to have been guilty of gross negligence after Mr. Dennis and three colleagues were kidnapped and held for four days. The aid workers were taken from a less secure area (known as IFO II) of Dadaab camp, Kenya in 2012. The incident left the driver dead and all concerned traumatised by the kidnapping.
The Court found that although NRC had sound policies and procedures in place these were blatantly ignored in some respects that contributed to this incident. The key decisions highlighted were:
- Information security was violated several times and increased the risk of kidnapping.
- The planned armed escort was cancelled which went against what was usual practice in Dadaab - and against the advice of the NRC security advisors.
- The new Country Director did not seek the advice of competent security personnel/expertise - nor was present for the visit.
- The decision to visit IFO II instead of areas in the camp with a lower kidnapping risk was questioned, as well as the failure to limit the period of time in that higher risk area.
The Oslo District Court judged that there was a lack of senior management available for crisis management given so many were involved in the convoy - who could also have been kidnapped.
Protecting your people
Many charities travel all over the World. Some of the places are termed ‘safe’ destinations such as London and New York, whereas some are obviously ‘unsafe’ such as Kabul and Mogadishu. But since 2001 and the events more recently in Paris, it is becoming increasingly difficult to categorise anywhere as ‘safe’ travel destinations for your people.
Many of the charities we work with have developed plans and strategies that include country briefings and security information. Some employ security managers to undertake this training for all staff that travel. Others outsource these services to specialist organisations – some for all countries and others for those that most people would term ‘unsafe’.
Whatever the category of your organisation, if your people travel to work on your behalf then ask yourself some simple questions:
Before you travel…
- Does your organisation have a travel policy? Do you know where it is and have you or they read it?
- Have you been given any information about the country to which you are travelling? This could include security briefings or a summary of the cultural differences to the UK.
- If you're travelling to a risky destination, have you received extra advice and/or training on how to behaviour? Has any one undertaken a risk assessment with you?
- Have you been given any guidance regarding how to travel in the country?
While you are away...
- Does your employer know where you are exactly?
- Do your family know where you are exactly?
- If there’s a local UK embassy or Consul’s Office, do they know you’re on their turf?
- If you are moving around does anyone have a copy of your itinerary?
- Do you know what action you must take if an emergency arises?
When you come back…
- Do you debrief your employer about the trip and any issues arising?
- Do you know how is this information collected, collated and used for the future?
- Make sure that someone knows where you are throughout your trip: your employer and your family in particular.
- Let people know of your itinerary changes.
- Make sure that you know what to do if/when something goes wrong.
- Take the trouble to learn about the culture and common/emergency phrases in the language of the country.
- Keep a note of useful telephone numbers (eg, UK embassy and consul) and website addresses on your person at all times.
- Be careful not to stand out as a visitor.
- Jump on a plane and expect everything to fall into place.
- Rely on technology.
- Keep everything of value in one place or on your person.
Security and Safety Management
We define four key areas around which to build security and safety management - and the thinking needs to happen before, during and after a trip.
- Briefings are useful about the country and local destination. This helps you understand a bit more about the culture and issues there. This should be bolstered on arrival with a local country briefing.
- Training should take place before travel and in accordance with your organisation’s policies and procedures that will determine who needs training and how frequently.
- Contingency planning should form part of the policies and procedures so that you can build a plan in a comfortable environment rather than on-the-fly if/when the balloon goes up.
- Incident reporting procedures should be in place to capture what’s going on and to learn from both incidents and near misses in order to improve policies and procedures for the future.
The main challenge is in risk management, across people and managers. People change as staff churns, experience is lost and people can become more complacent and ready to take risks. Meanwhile management often has to allocate typically scarce funding resources that can lead to a lack of investment in security and training. As the recent NRC ruling by the EU Court illustrates, it’s all too easy for processes and knowledge to slip - with potentially disastrous consequences.
This brings us to Travel Insurance…
Travel insurance offers some financial assistance to charities that experience problems when their employees, volunteers and others travel overseas on their behalf. While what is covered is generally well known it is important to remember the typical exceptions:
- Receiving a personal accident benefit as a result of accidents resulting from deliberate acts/intentional injury, suicide and the consequences of being intoxicated by drink or drugs.
- A traveller being disinclined to travel or to continue their journey will result in the organisation not being able to claim for cancellation costs.
- Evacuation expenses will not be paid when conducted without the consent of the insurer’s security consultant.
- Medical expenses are not payable when someone who is travelling gives birth within 4 weeks of the birth date, or where people travel against the advice of medical practitioners.
- Personal baggage and money is not covered when it is stolen or damaged whilst outside the control of the person travelling or left in an unattended vehicle - or where the theft is not reported to the police within 48 hours of it occurring.
Travel insurance automatically includes the services of a medical assistance company (such as First Assist) who can really help you to make sure your traveller receives the best medical help available locally. They can also authorise the medical evacuation of people to better-equipped hospitals outside of the country where the person has been injured or fallen ill.
Some travel insurers persist in excluding high-risk countries unless they’re included in a travel pattern. Examples include Haiti, Algeria, Georgia, Pakistan, Peru, Russia and Thailand. This can make it difficult to obtain insurance for a new destination you need to reach. Our advice? Pressure test your broker.
Points to remember about travel insurance…
- Do check the policy small print for any such restrictions and bear them in mind if someone needs to go to a destination not disclosed within the travel pattern on which the premium and terms have been based.
- Additional Special Contingency insurance is available and includes the services of specialist security firms who understand how to deal with kidnap incidents. Please note deliberate and fraudulent acts of identifiable employees and other forms of collusion will invalidate this insurance.
Psychological counselling and travel insurance: what the NRC case tells us…
The Oslo District Court Ruling of Gross Negligence in the NRC case quoted above included a criticism of the insurance arrangements that NRC had in place around psychological counselling.
Travel insurance may only provide limited cover (if any) whereas Special Contingency policies tend to include fees for independent psychiatric, medical and dental care. These typically include care given by a neurologist, psychologist and any expense of confinement incurred prior to and within 36 months of the release of an individual who is kidnapped, up to the policy limit.
Note to self:
Since the lack of psychological counselling was highlighted as a criticism by the Oslo Court in this case, it would be wise to check what your insurance cover provides.
As a leading insurance broker for charitable organisations across the UK, we can help you close this gap - or any other cover deficiency - should one be identified.
Operating at all times with the utmost confidentiality and maintaining a strict policy of non-disclosure, Arthur J. Gallagher’s specialist Crisis Management team comprises individuals with many years experience of providing consulting and risk transfer solutions for individuals, families and organisations against kidnap for ransom, extortion and related risks.
What about employees seconded for longer periods?
Travel insurance only responds to short durations usually not longer than 12 months. Employees seconded for longer periods can be left unprotected against the costs of medical treatment and emergency evacuation. This can be addressed through an International Private Medical Insurance policy (IPMI).
This will provide access to local healthcare, in-patient and out-patient treatment as well as the costs of drugs and dressings. Importantly it also covers the costs of emergency treatment and evacuation. All IPMI policies include a level of psychological treatment and higher limits can be negotiated.
We believe that a combination of risk management and insurance is the most comprehensive way to protect your Duty of Care responsibilities. Our Crisis Management team can help organisations to anticipate, prevent, respond and recover from an incident through focusing on likely risks that people will be exposed to when travelling and putting ‘appropriate’ risk mitigation measures in place.
Understanding how an organisation will respond to an incident down to who will do what and when is paramount to the successful outcome of an incident. This response planning needs to be continuously reviewed as the threat landscape is dynamic.
The insurance policy will provide support and assistance through specialist Security Companies and we believe it is better for an organisation to understand how this works ahead of an incident occurring. This will help ensure that both internal procedures and external support knits together to maximise resilience.
Download the Travel Insurance for Charities.pdf