Dangerous liaisons

What to do when your job's not safe

Finding employees willing to go to dangerous places is not always easy. Richard Gizbert, a former ABC television correspondent, is currently waiting for the Employment Tribunal to decide whether he should be awarded £2.3m compensation because ABC decided not to renew his contract. Gizbert is arguing that ABC’s decision was motivated by his unwillingness to take on dangerous assignments. Meanwhile, RAF Flight-Lieutenant Kendall-Smith is facing a court martial for refusing to go to Iraq.

Before insisting that an employee work abroad, or deciding how to respond to any refusal, the employer should consider whether there is a contractual right to require the employee to go. The starting point will be the things agreed in writing. For example, the employer could check the employment contract to see if there is a mobility clause or detailed job description. If the position is not clear from the documents, consent may still be implied. Has the employee travelled to dangerous places in the past? Is travel an inherent part of the job?

Will travel
Those recruiting employees who may later be asked to travel to dangerous places may try to seek agreement in advance. New recruits tend to be more flexible about employment terms, but beware the trap of providing for too much employee flexibility. This may lead to discrimination claims, for example on the basis that it is harder for a woman to comply with a mobility requirement or because individuals of a particular nationality or religion would find an overseas assignment more dangerous. (Would Guardian journalist Rory Carroll have been released by his Baghdad kidnappers if he did not have an Irish passport?)

Even if the contract makes it clear that an employee may be required to travel, the employer must still exercise his discretion in a way that is not irrational or perverse. Circumstances may have changed: things may have become more dangerous; the employee may now be pregnant.

Assuming that the employee can be persuaded to go, the employer will still need to think about his or her health & safety obligations. The employer will need to take steps to minimise the risks of injury or death and ensure that appropriate insurance cover is taken out.

Doing the groundwork
Careful preparation, particularly for longer assignments, can make all the difference. Core benefits such as medical insurance cover and secure accommodation and transport arrangements are likely to be expected, while assistance with more personal things such as making a will or home visits can also help make the assignment a success. For longer-term assignments the more expensive benefits might be made conditional on the employee remaining in the job for a certain length of time.

If an employee has reasonable grounds for refusing the overseas assignment, the employer should not be tempted to retaliate. The employee may be able to claim damages for breach of contract or make an unfair dismissal complaint - and if the dismissal was motivated by a health and safety complaint, or the complaint has a discriminatory basis, compensation may be unlimited.

Contributor: Juliet Carp, solicitor, Speechly Bircham

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