Duty of Care: What’s the Security Director’s Role?
Duty of Care is a shared responsibility, especially in today’s global economy. As employees cross borders and increasingly work in hostile environments, increased risk is brought to an organization’s most valuable assets: its employees.
In the Duty of Care and Travel Risk Management Global Benchmarking Study commissioned by International SOS, security ranks near the top of the list in “ownership” of Duty of Care. That includes primary responsibility, coordination and decision-making. And that’s a large responsibility to have.
So where can the conversation start with senior management? How can you educate employees about your travel assistance program? How can the security director get a seat at the decision-making table?
Background on Duty of Care
Duty of Care is a company’s obligation to protect its employees from risks. Among other things, these risks can be related to injury, sickness, safety, security, health, finances and travel. Simply put, it’s doing the right thing.
In 2009, International SOS commissioned Lisbeth Claus, Ph.D., SPHR, GPHR, a professor of global human resources at the Atkinson Graduate School of Management of Willamette University, to pen the first definitive look at Duty of Care.
The study found that the concept entails more than just a simple definition. In fact, the legal concept of Duty of Care presumes that individuals and organizations have legal obligations to act towards others and the public in a prudent and cautious manner to avoid the risk of reasonably foreseeable injury to others. Duty of Care requirements may be imposed by both statute (legislation) and common law.
Duty of Care requirements are also the result of cultural and social expectations of acceptable standards of care. In that sense, employers have a moral as well as legal responsibility and obligation for the health, safety and security of their employees. Breaching Duty of Care may give rise to an action alleging negligence and may result in damages or even a criminal prosecution of the employer.
Away from familiar surroundings, employees may encounter precarious environments that present increased and unfamiliar threats to their health, safety and security. This highlights the corporate liability of employers, who have a legal, fiduciary and moral Duty of Care for their employees. Risks and threats range from hostile political environments, natural disasters, exposure to disease, travel accidents and other common travel problems.
Employers are expected to take reasonable practical steps to safeguard their employees against any reasonably foreseeable dangers in the workplace. These Duty of Care obligations of employees encompass a large number of activities considered within the realm of employee wellbeing. The range of Duty of Care responsibilities of employers usually extends beyond the typical workplace and direct-hire employees, and may extend to contractors and subcontractors.
Due to the gravity of the employers’ Duty of Care responsibilities, as well as the diversity of legislation, the complexity of jurisdiction and the choice of law, it is in the best interests of organizations to meet the highest prevailing Duty of Care standards to ensure risks are mitigated. Ultimately, the integrated risk management plan that is embedded into the corporate culture cannot be delegated or outsourced. It is the legal, fiduciary and corporate social responsibility of the organization to develop a plan.
A Global Benchmark
In 2011, International SOS took the next step in the Duty of Care discussion. The Duty of Care and Travel Risk Management Global Benchmarking Study surveyed 718 respondents from 628 organizations with global operations on a diverse range of issues related to international travel and the challenges faced by expatriate workers and their families. More broadly, the study looked at perceived high-risk locations, risks and threats faced by employees, awareness by company industry key stakeholders and departments, primary decision-making within companies, and legal and moral obligations.
The result is a comprehensive study that provides an interesting look at the risks faced by international business travelers and expatriates, the countries perceived by travelers as posing the highest levels of risk, and the unique concerns of individual industries. Additionally, the study examines the way organizations manage Duty of Care obligations. The 47-page thought leadership document was also authored by Dr. Claus.
Of particular interest to security directors is the fact that the study sheds light on a lack of consensus on who “owns,” or should own, Duty of Care, and on where it should reside in an organization, with respondents most often citing human resources, security, risk management, senior management and travel managers – albeit with little clarity on which discipline is most suited to manage
Scenarios: What Can Happen?
Companies – and security directors – may know what to do at home, but may be unaware of the requirements for employees abroad, which can be more demanding than home country standards, as they may extend beyond what is traditionally seen as the “workplace.” Several countries have developed legislation and derivative case law that reflects employers’ expanded Duty of Care responsibilities, and courts are increasingly favoring employees. Still, case law continues to redefine Duty of Care obligations.
We can point to several examples:
• An employee of a French company working in China suffers a cerebral hemorrhage in hotel room. The court finds that all injuries during a trip abroad considered “work-related.”
• A British employee of a U.K. company is injured, working on a Dutch boat, as result of Dutch captain’s negligence, in Swedish waters. The court ruled that Duty of Care is non-delegable and the responsibility can’t be placed on subcontractors.
• A court transcriber sent by U.S. firm to Toronto falls in the hotel bathtub and is injured. He is awarded workers compensation. The employer appeals, but the court upholds award, saying changing environments cause greater risk of injuries, requiring compensation.
Armed with knowledge of Duty of Care, how can the security director be involved? There are many ways, and communication is one of the keys to success.
• Be open and collegial in ensuring that you communicate and interact regularly with colleagues in other departments, including medical, legal, travel, public affairs, risk management, finance and any others relevant to duty of care concerns; after all, as director of security, you’re part of management and need to be in tune with these stakeholders on many issues, including Duty of Care;
• Ensure that you take advantage of opportunities to communicate the essence of the principles of Duty of Care to upper management, as well as the previously-mentioned stakeholders;
• Work with upper management and colleagues to set up a Duty of Care committee for your organization, and ensure that you are a key and active member and that all stakeholders are involved. If you already have a crisis management committee, Duty of Care could become a function of that group as well. As a team, take inventory of what processes, resources and vendors that other departments many manage to help you fulfill your Duty of Care. And make sure the committee meets regularly, not just when there’s a crisis;
• Stay current on Duty of Care trends, legal decisions and best practices, as well as threat ratings for your travelers/expats, by reading the relevant material, which may be found through professional organizations, publications and possibly your travel security provider, if you have one;
• Don’t allow the Duty of Care portfolio to be left to one or two departments to run, whether it is to yourself as the security director, or to any other entity. As security director, you already know this, because virtually every crisis you’ve ever managed or been a part of managing has probably involved many parts of your organization, and crisis time is not the best time to be bringing everyone up to speed on what their role should be;
• Don’t let cost considerations keep your company from having a comprehensive Duty of Care program. While you need to control costs, the impact of just one poorly-managed emergency situation involving one of your employees can be far beyond any reasonable program implementation cost. That’s not just in dollars, but in injury or loss of life, business disruption, damage to brand/reputation and more.