Corporates with global reach frequently rely on employment arrangements in which they source workers in another country through the services of an employer of record in that country to ensure compliance with the statutory and regulatory employment requirements in that country, including taxation and pension adherence for the workers. Yet, the day to day operational management of the worker is by the ‘managing’ organisation in the other country rather than the employer of record.

As part of our remit, GSA Global undertakes assessments and audits of organisations’ travel risk management arrangements for employees required to undertake business travel. In most countries, employers have a legal duty to provide a safe working environment which includes when personnel are travelling, and this is part of the employer’s duty of care.

Who Owes Duty of Care?

The question arises who owes the duty of care to an employee employed by an employer in one country but who is being managed by a different organisation in another country? In particular, who is responsible for the safety and security of that employee when they travel to a third country as part of their duties?

This is not theoretical or academic musing: we have encountered lack of awareness, confusion and potential gaps when we have been asking these questions during assessments. Different employers have explained their position in different ways. For example:

  • Managing organisations expect employers of record to be responsible for duty of care in respect of business travel.
  • In other cases, where a worker (as distinct from an employee) has access to the travel booking tools of the managing organisation, the workers are treated as if they are an employee and are afforded the same travel risk oversight and support. Whether they have access to travel booking tools is often dependent on their role, or may just be by the fortuitous allocation to the worker of an email address in the managing organisation’s domain name.
  • Even where (employer of record) workers are provided with a pre-travel advisory of likely travel risks, the workers are not given access to travel-related policies, procedures and processes – documents deemed confidential to the managing organisation.

Meanwhile, employers of record explain that:

  • They usually do not have detailed oversight of their employees’ day to day activities when those staff are working for others.
  • They take their duty of care seriously but can’t necessarily explain how they discharge it in the above scenarios
  • Contract terms and conditions with the managing organisation and employee/worker are created which are bespoke to travel-related scenarios. Whilst that approach would make sense, we have yet to see an example of T&Cs that address the issue.
  • Foreign travel by an in-country employee of record is unusual and is dealt with on a case by case basis through liaison between the employer of record, the managing organisation and the traveller. We have yet to be advised of a specific case where this has happened.

Any assumption that it is the ‘other employer’ who should be managing travel risk could mean that an affected employee does not have the benefit of a robust risk assessment and mitigation plan dealing with their medical fitness for the travel, the safety of their transportation, and the security situation in the environment they are travelling to. Further, how likely is it that bespoke contingency plans have been drawn up to relocate or evacuate the individual in the event of an emergency?

Legal Implications: Duty of Care Cannot Be Delegated

UK law and case law is clear that duty or care is something that employers cannot derogate from, and if actionable harm arises to a traveller, that duty will be carefully considered by the courts, whether criminal or civil.

No employers want to be in a position where their defence is ‘cut-throat’ blame of another employer. It will be fact sensitive as to which ‘employer’ had responsibility for a traveller’s safety, but it is surely better not to be in such a situation in the first place.

GSA Global invites employers and employers of record to think carefully about their hiring arrangements to make sure that there is clarity and agreement about who is responsible for what aspects of a business traveller’s safety & security and when. In a complex and sometimes dangerous world, business travellers deserve no less.