Duty of Care; delusions and solutions
“That’s right!” shouted Vroomfondel, “we demand rigidly defined areas of doubt and uncertainty!”
(Douglas Adams, The Hitchhiker’s Guide to the Galaxy, 1979)
What is Duty of Care?
Duty of care is the responsibility of an employer to foresee the risks their employees face (abroad) and take appropriate actions to mitigate these risks.
This might seem simple. In reality nobody really knows what this exactly means.
Hey wait a minute, you might say, I have read dozens of reports from really smart people that do explain duty of care.
That is correct, and what these reports say does make sense. They tell you what duty of care legally is, who and when somebody falls under these laws, what the scope and limits of the law are etc.
In this blog I would like to focus on the more uncertain and practical part of this law; when have you foreseen risks and when have you taken appropriate measures?
After the incident, clarity will come
The right answers to these questions are basically assessed after an incident. The mitigating measures that should have been taken in a specific case are determined by a court. Until that time you do not know if you did the right thing. It is a classic Schrödinger’s Cat situation. Only when the box is opened you see if the cat is alive or dead. (if you are not interested in thought experiments from the field of quantum mechanics, forget this example).
Ok, you say, now what? Before giving you a solution, let us dive deeper into the rabbit hole.
Court rulings and you
There are many court cases that give you an idea of the risk mitigating measures you can put into place. There are three problems with these cases: they are often highly specific, based on national laws and not suited for travellers or workers overseas.
First, a court ruling is an answer to a specific case. Your situation (or incident) is probably not exactly the same as described in a court ruling. The variables of a specific situation are many and often highly intertwined with the characteristics of the victim, the location of the incident, the assignment and the context in which the incident took place. You can imagine that there might even be more variables involved. The chance that your variables are the same as the variables described in a court case is slim.
Secondly, the court cases are also mostly based on the national laws in a certain country. Especially for international organisations working in many countries and law-systems this can be a problem. What might be acceptable in one country might not be enough in another country.
Lastly, court cases are also mainly based on stationary situations. Incidents on a building site, in an office or school. These are more controllable situations where the employer has oversight and can intervene to defuse a dangerous situation. Travellers often find themselves in a dynamic and less controllable situation. The employer has limited oversight and the risk mitigating measures cannot easily be enforced.
Assessing risks and implementing measures is highly specific to your situation. There is no rulebook or excel sheet which can assess your risks for you. Let alone come up with the appropriate mitigating measures. It can only be done tailored to your organisation. There is no quick fix.
But, you might say, I have read on the internet that I have to insure myself. That is duty of care according to the insurance company. Somebody else might state: I have heard from our medical company that you have to make sure the medical support is state-of-the-art. And the same for trauma and stress support, travel tracking, security policies etc. We as CSD emphasis HEAT (Hostile Environment Awareness Training) courses…
These risk mitigating suggestions are all useful but it is the combination of the right measures to meet your specific risks that makes your duty of care effective. And here we are back at the beginning of the problem, when have I foreseen risks and what is the right combination of appropriate measures?
So, what now?
Duty of Care Matrix as a guideline
To give you a guideline and a place to start, you can use the Duty of Care Matrix. This matrix was developed by the Coalition of Care, a cooperation between Raptim/Key Travel, Antares Foundation, AON and CSD. With this matrix we want to clear a path through the dense duty of care forest. You can download the matrix below.
We looked at the best practises and court rulings that give an indication of which practical topics are important. We limited ourselves to 10 topics. Otherwise it would be overwhelming.
Per topic we gave five options, from poor to excellent. Not all topics are always relevant and not all measures are always needed. The aim of the matrix is to help you to improve your duty of care system. You can use it to benchmark your situation and make (incremental) improvements.
The practical part of analysing risks and implementing measures to mitigate these risks will still be up to you. But you can do it in a framework which will make these tasks more tangible.
Please, do not be too hard on yourself, there is no watertight system that will protect you. You cannot foresee everything and it is not easy to implement all the measures. But what you can do is start improving your duty of care, even by small steps. These steps can make a big difference for a colleague traveller or worker abroad faced with a dangerous situation. It also helps you sleep better at night when you have done reasonably everything you could have done.
Click on the matrix to download the pdf.