Health and safety laws and working overseas

Speaking at the Institution of Occupational Safety and Health (IOSH) annual conference in Cardiff, Kevin Bridges from law firm Pinsent Masons explained the extent to which civil and criminal liabilities of UK employers could extend to accidents and hazards occurring overseas.

In terms of criminal liability he said that employers had an "overriding duty" to ensure the health and safety of all employees at work, regardless of where their work was carried out. Assessments of significant risks must also be undertaken regardless of location.

"However, the general principle is that health and safety legislation only applies to persons, premises, workplaces and work conditions situated within Great Britain, as Parliament and enforcing agencies do not have the power to make or enforce laws in other countries and jurisdictions," he added.

But despite this, in respect of those who work mainly in the UK and operate occasionally overseas, "the criminal duties imposed by the Health and Safety at Work Act and its regulations will almost certainly apply," said Mr Bridges.

On the other hand, where employees are working on a full time basis or for a prolonged period overseas, UK health and safety legislation would be "unlikely to be upheld". However, the employer would need to know the health and safety laws of the country where the employee was working in order to comply with them.

Civil liability

Kevin Bridges told delegates at the IOSH conference session, which was focussed on international issues, that the position under civil law was "less clear".

One major question was whether an employee of a UK incorporated company suffering injury or ill health while overseas, and in the course of their employment, could sue his or her employer in the UK for negligence. Likewise could the dependants of the employer sue in the UK in the case of death?

For claims brought within the European Economic Area, the 'Brussels Convention' would help to determine which court or courts had jurisdiction, the Pinsent Masons lawyer explained.

"Very often, more than one court has jurisdiction, although the general principle is that a defendant is sued where it has its domicile," said Mr Bridges. "In the case of a company, this is usually the where it is registered or incorporated. In addition, the courts of the country where the accident or harmful event occurred may have jurisdiction.

"Therefore under the Brussels Convention, if an employee of a UK incorporated company is injured in France, and sues his employer, either the UK of the French courts could assume jurisdiction depending on where the employee chooses to bring his claim."

He added that if the accident occurred in a country outside of the scope of the Brussels Convention then that country may also be able to hear the claim, provided its own jurisdiction rules permitted this, as most currently do.

Choice of law

Mr Bridges said that unless there was good reason to bring a claim in another jurisdiction, most British nationals injured abroad would be likely to commence their claim in the British courts.

"If neither party pleads foreign law as part of their case, the court will by default apply 'British Law'. However, if foreign law is pleaded it will fall to the court to decide what the appropriate law is."

In Britain, the decision would be made based on the Rome Convention, which says that the applicable law would be that as agreed in the employment contract. In the absence of such a clause in the employment contract then the law of the country where the employee "habitually carries out his duties" would be applied.

In the absence of any wider international convention regulating the applicable law in negligence cases, then the general starting point is that law of the country where the injury arose would apply.

However, there may be exceptions to this, particularly when the employee works mainly in the UK, in which case 'British Law' could still apply! The specific circumstances of the case could also have a bearing.

Duty of care

Kevin Bridges stressed that an employer owed a duty of care to its employees "wherever they work in the world" under both the criminal and civil law.

The standard of care expected would depend upon "the degree of control the employer can reasonably be expected to exercise" and any "express contractual terms allocating responsibility for employees' health and safety".

"In the case of those who work mainly from home, the standard of care is likely to be higher and based upon that of an ordinary prudent employer exercising reasonable care," the conference was told.

"The employer should undertake a risk assessment and ask the question whether the trip is absolutely necessary. Can working overseas be avoided altogether? If it cannot, it must identify potential hazards, assess the risks and decide what preventative and protective control measures are reasonably required."

Local political and social issues, disease, health care, crime, standards of accommodation and transport were among the issues employers needed to consider. Also, insurance arrangements, workplace standards, information and training and emergency/contingency planning would have to be looked into.

Mr Bridges also pointed out that on return to the UK an employer was duty bound to take reasonable steps to check for possible health and safety problems and to ensure that the recently returned employee did not expose other employees to risks to their health and safety.