Spearfish Security recently held a Duty of Care (DoC) Seminar, chaired by our Managing Director Dan Hooton and Guest Speaker, Adrian Powell from Proelium Law, UK's foremost legal authority on high-risk jurisdictions and specialist risk services.
Overview
Our purpose was to highlight the particular importance of DoC, i.e. the requirement to look after staff or those engaged on your behalf when deployed in the field.
Despite the significant changes towards remote working and adjustments it has brought to business operations in the last months, it is essential to assure your DoC platform aligns with these changes and your business model. You must also ensure liabilities and legal requirements are met to avoid any additional risk exposure to you and your business.
Guest Speaker - Adrian Powell
Adrian Powell qualified as a solicitor in 2004 following 11 years in the British Army. After several years in general legal practice, from 2005 to 2013 he spent most of his time in Iraq and Afghanistan as a legal advisor with various entities including the US DoD, a major private security company and the UK FCDO. From 2013 to 2015, he managed a significant legal project focusing on the war crimes in Syria.
The Legal Case for Duty of Care
First of all, Adrian spoke about the critical premise that the laws on negligence apply globally. A company has DoC towards an employee as part of their contract, regardless of whether a security company is engaged in providing protection.
The main section dealt with the legal foundations of DoC. There are two approaches to DoC from the English law perspective: Statutory (e.g. Health and Safety regulations) and Common law, where the term DoC comes from and fall as part of the tort of negligence. A business is legally required to provide this and ensure the best for the employee.
The term DoC can be often misused, making it difficult to understand it clearly. Adrian clarified that a claimant must, by law, prove all following points to prove a case of breach of DoC:
That the DoC was owed from an employer to the employee. In some circumstances, it is automatically owed (e.g. employment contract, teachers to students, lawyer to clients), but in others, it may not be apparent, specifically in consultants' case. The more dangerous the environment you are deploying your consultant to, the more likely you owe them a DoC.
That there was a breach. Proving a breach can be subjective, but the general criteria for assessment are, was it reasonably foreseeable, and if so, was there a failure to exercise care?
That that breach of DoC caused the loss/injury. Having established a breach, did the loss/injury result directly from it?
It is also important to consider 'contributory negligence', where the actions of the employees may have contributed to their situation/loss/injury.
Adrian then provided relevant case studies for application to demonstrate how liability can vary. The point being it is decided and interpreted depending on the facts of individual cases.
The case studies showed that DoC applies as soon as employees are deployed, and a company must be aware of its risks. Each case is unique, and organisations should note that no precedent has been set for the current COVID-19 pandemic.
Key Points
Employers must assess risks and then put in place measures considering identified risks.
If you are deploying and moving staff including consultants, you owe them DoC.
Ensure you are prepared and have insurance in place to deal with any issues in the future.
Note that there has been an increase in cases brought to UK courts from other countries.
Each case is decided on individual facts, and you will have to make a case for your actions taken.
Duty of Care Seminar Video
We have posted an edited version of the Duty of Care Seminar and can be accessed through the link below.
