Duty of care when travelling overseas, the devil is in the details

“How was your trip?” you ask your colleague as he walks confidently down the corridor, tanned and full of energy.

“Yes, it was an interesting and productive trip,” he replies.

He gives you a summary of his successes and also adds that he had some stomach problems during the trip.

“I went to the hospital. They gave me some medication that worked very well.” “Is everything okay now?” you ask, concerned.

“Oh yes, fine, I’m completely back to normal now.” You continue on your way, reassured by his answer.

Fast forward to some time later. The employee receives €15,000 as the first instalment of a much larger sum in loss-of-income payments and compensation. Why? Because you have failed to fulfil your duty of care as an employer.

Could you have seen this coming? How did it even get this far? Something so trivial and simple, and yet, as an employer, something so easy to overlook. The devil is in the details.

I invented the dialogue above myself. The case that really took place is described in the ‘ABB ruling’. It’s a ruling that concerns an employer’s duty of care and one that is well worth reading. What were the details of the case? The company, ABB, sent an employee to Thailand. During the trip in December 1995, the employee developed stomach problems (diarrhoea) and was admitted to a Thai hospital. He was given medication and was released the next day. The employee reported what had happened to a local ABB manager, who in turn informed the administrative secretary.

Upon returning to the Netherlands, ABB failed to ensure a medical examination and the employee did not request this.

The employee reported himself sick on 16 September 1996, almost one year later. Eventually, he was diagnosed with an amoebic infection of the liver. This condition limited his lifestyle to such an extent that he was eligible to receive occupational disability benefit (WAO). He held ABB liable for the consequences of this health condition.

For ABB employees who are sent abroad, the following regulations apply: ‘Employment outside the Netherlands’. These regulations are referred to as ‘the overseas regulations’ by the parties concerned and the judge also uses this term in the ruling. Incidentally, many organizations refer to this kind of regulation as a travel policy.

These overseas regulations stipulate, inter alia:

1.5 The special employment conditions mentioned below will replace those provisions which relate to the employment relationship and/or working conditions in the Netherlands.
4.1 For some countries, vaccinations or medical examinations are required. Human Resources will inform you of this; the associated costs will be covered by ABB.
8.1 ABB will, in principle, provide accommodation during the period abroad. The department is responsible for this.
16.1 The employee is covered by ABB’s travel and accident insurance policy.”
2.8 Appendix 2 of the overseas regulations concerns a “Checklist for working abroad”.
These include:
4 – Medical examination (prior to departure and/or upon return, as necessary)

The ABB ruling involves many different aspects. Here, I will primarily address the liability issues.
There are in fact a number of questions here:

• Did the employee become sick while working in Thailand?
• Did he report himself sick?
• Should the employee have had a medical examination?
• Would such a medical examination have revealed the amoebic infection?
• Is ABB liable for the damages incurred?

Let us go straight to the final question: is ABB liable? The employee was able to hold ABB liable because of one short article in its travel policy: the employee is to be given a medical inspection (prior to departure and/or upon return, as necessary).

Because this rule is included in its regulations but ABB failed to comply with it, ABB has in principle violated its duty of care and is liable. However, for this to be the case, the above questions must also all be answered affirmatively.

The first question is whether the employee became sick while working in Thailand. Even though the condition also occurs in the Netherlands and Spain (where he had been on holiday), the court assumed that the condition had been contracted in Thailand. The judge argued as follows: it is true that the possibility that the condition was contracted in a location other than Thailand cannot be excluded 100%, but this is because no medical examination took place following the trip. The failure in the duty of care for the employee takes priority over causality. In other words, the duty of care is deemed more important than exactly what caused the health condition.

In this case, the ruling addressed the question of whether the employee could have caused the condition himself by eating something outside working hours. The disease is transmitted via food. The judge indicates that the employee would have had to eat and drink while in Thailand, thus blurring the line between work and private life. In addition, ABB, according to their own regulations, played a role in choosing accommodation for the employee. What is more, the judge claims that precisely because food safety in Thailand is lacking, a medical examination should have been carried out to detect any infection at an early stage.

The next question is whether the employee reported himself sick. The ruling shows that this was indeed the case. The employee also had evidence to substantiate this. A number of ABB employees knew that he had been unwell during the trip.

The third question is whether the employee should have been examined. Again the answer is affirmative. According to its own policy, this should have occurred, but it did not. According to the judge, the employer should have been paying more attention. The fact that the employee did not request an examination is not relevant.

Suppose an examination had taken place: would the infection have been detected? If this is not the case, then ABB is not liable. ABB claims that the medical examination would have been carried out by a non-specialist health and safety doctor. The employee seemed healthy at that point and cases of diarrhoea occur regularly among Western people visiting Thailand. According to ABB, no follow-up would probably have been carried out following the employee’s visit to the doctor, and the condition would therefore not have been detected. The judge, however, claims that ABB should have had the employee examined by a doctor with knowledge of tropical diseases. Expert witnesses also indicated that the chance of detecting the infection would have been large under these circumstances.

The final question is whether ABB violated its duty of care and is therefore liable. According to Article 7:658 of the Dutch Civil Code and the Dutch workplace legislation, the employer has a duty of care. The court views the provisions of ABB’s overseas regulations as an elaboration of these statutory duties. Because ABB knew that the employee had been taken ill, and even hospitalized, a medical examination should have been arranged. Because this did not happen, ABB violated its duty of care and was liable for the resulting damages. The employee was awarded an advance payment of €15,000 pending the calculation of the amount due in loss-of-income payments and compensation.

ABB was the loser in this ruling. They were found to be at fault at almost every step. I can understand the reasoning of the judge, but I would like to highlight the employer’s perspective. I think that many organizations who send employees overseas have to deal with cases of illness contracted while abroad. Sometimes this is simply due to the tiring journey, the heat, the different food and jet lag. Stomach complaints are particularly common. I can understand why alarm bells did not necessarily start to ring immediately at ABB, particularly since the employee appeared to be healthy afterwards.

What matters to me in this case are the major financial consequences of the company ignoring its own policy regulations. Because ABB explicitly specified that a medical examination should take place upon return, it was held to this commitment very strictly. Failing to comply with its own policy meant that ABB was penalized heavily. The final compensation awarded in this case is not mentioned, but it would have been high.

The actual implementation of its own regulations (and not only the specific regulation on which this particular ruling is based) is the crucial point here. It is better to have a basic, simple travel policy in place than to draft comprehensive and detailed regulations that the organization cannot then honour. Or in the case of ABB: making a medical check-up upon return compulsory is one thing, but ensuring that the relevant decision-maker is provided with the correct information (notification of sickness) and then takes the appropriate action, is quite another. You should only set up a travel policy if your organization can actually implement that policy. Otherwise, in the event of an issue, you are giving the judge a large stick to beat you with.

The above case is part of a tendency towards increasingly strict requirements, imposed by the government, on employers who send employees to work and travel abroad. The duty of care vis-à-vis employees on the part of the employer continues to evolve, often through the courts. It is therefore wise to ensure that this duty of care is honoured, otherwise employers run a high risk of being held liable for the consequences.