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Tuesday, May 31, 2016, 00:02

Employees working overseas must be properly cared for

By Farzana Aslam

With the impact of globalization resulting in increased transnational business opportunities, Hong Kong-based companies are faced with an ever-increasing requirement to send their employees abroad on business-related activities.

Employees working overseas must be properly cared for Many employees are expected and required to be mobile, flexible and ready to travel at short notice in pursuit of business opportunities, or to manage operations, personnel or crises overseas. Others are required to spend longer periods of time on assignment or secondment in a foreign jurisdiction as part of their training, knowledge exchange or career development.

While many employees welcome the prospect of overseas travel and assignments, employees traveling and working overseas may be exposed to a number of risks that fall outside of the scope of risks contemplated by health and safety management systems applicable to workplaces in Hong Kong. For instance, employees who contract an illness or pandemic disease may, in countries with weak healthcare infrastructure, be exposed to an increased level of risk. As borders open and markets emerge in areas that are politically, socially or economically unstable, risks related to personal safety and security present themselves alongside more readily assumed health-related risks.

From a legal perspective there is a duty of care on employers to ensure the health and safety of their employees at work. The duty of care is a personal, non-delegable duty. It is thus no defense for an employer to say he has delegated his responsibility to the employee himself or to another company to which the employee is assigned, even if the workplace is located overseas. An employer’s breach of this duty will give an employee a right to bring a claim to recover damages for losses suffered as a result of the breach, for example for the pain and suffering of any personal injuries and for loss of earnings for any period of time which the employee was unable to work as a result of such injuries.

The no-fault scheme provided by the Employees’ Compensation Ordinance (ECO) has specific provisions relating to liability for work-related injuries that occur overseas. Bringing an employee compensation claim under the ECO is a cheaper, quicker alternative to a breach of duty of care claim, but damages are more limited in nature, so it is not uncommon for employees to bring parallel claims. In addition to the risk of a civil claim an employer may face criminal prosecution. Although the Occupational Safety and Health Ordinance has no extraterritorial application, there appears to be no reason in principle why a Hong Kong employer could not be prosecuted in relation to an injury or accident that has occurred overseas where the failure to exercise the duty of care occurred in Hong Kong (e.g. failure to provide all necessary information, instruction, training and supervision to ensure the safety and health at work of employees).

A white paper published by the Centre for Comparative and Public Law at the University of Hong Kong last week sets out a summary of the employer’s duty of care owed to employees working overseas and presents the findings of a study on the nature of health and safety risks faced by Hong Kong-based employees who are required to travel and work overseas, and the human resource policies and procedures that are used by Hong Kong employers to manage and respond to such risks.

The most significant findings of the study were that the practice of conducting an employer-led risk assessment for overseas travel was limited and ad hoc in nature, and employers tend to place undue reliance on travel insurance to “protect” the employee. These findings are of some concern. While travel insurance can provide a valuable resource in responding to cases of emergency it is unlikely, by itself, to be enough to discharge an employer’s duty of care — particularly where the nature of the risk to which an employee was exposed was foreseeable. The overreliance on travel insurance presents a significant risk to both employers and employees, since it is often used instead of rather than as a supplement to a thorough risk assessment.

The study was limited to a convenience sample of nine Hong Kong-based employers, the largest of which employed 23,300 employees and the smallest of which employed 200 people. Most employers in Hong Kong are in fact SMEs (i.e. manufacturing enterprises with fewer than 100 employees and non-manufacturing enterprises with fewer than 50 employees), so a concern is that they may not have the time or the resources to devote to this issue. It is nonetheless an important issue as it presents risk for both the employee and the employer.

From a policy perspective, the objective of the white paper is to generate discussion and awareness among employers about the nature and extent of the duty of care owed toward employees who are required to work overseas, and to encourage the Labour Department to issue a code of practice of safety management for employees required to travel overseas in order to establish a set of best practices.

The author is principal lecturer and associate director, Centre for Comparative and Public Law, Faculty of Law, the University of Hong Kong.

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