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An organisation that fails to protect a member of staff may find that the question is not whether it had a duty of care, but what it did about it. This paper examines where legal liability sits, and what the case law available at the time actually established.

The question the paper answers

Humanitarian employers have long accepted that they owe their staff a duty of care. What has been less clear is what that means when something goes wrong: whether the obligation is enforceable, who can enforce it, in which forum, and what an organisation would have to have failed to do in order to be found in breach.

The paper works through the routes by which a claim can be brought. An employment claim in the country where the contract was made. A claim in the country where the injury occurred. A claim under the law of the organisation's seat. Each route has its own test for the standard of care, its own rules about what an employee has to prove, and its own limits on what can be recovered. Those differences matter, because an organisation that has satisfied one standard may not have satisfied another.

What the analysis turns on

• Foreseeability. Whether the organisation knew, or should have known, that the deployment carried a particular risk. A documented risk assessment that identified the risk and was then overruled is far harder to defend than no assessment at all.
• Reasonableness of the response. Whether the measures taken were proportionate to the risk identified. The benchmark is not what the best-resourced agency in the sector does, but what a reasonable employer in the circumstances would have done.
• The contract and the policy. Whether the organisation's own written standards were met. An internal policy that sets a higher standard than the law requires can become the standard against which the organisation is judged.
• Immunity and jurisdiction. Whether the organisation or the state involved attracts immunity, and whether a forum is available at all. In some circumstances there is no practical route to a claim, which is a gap in the system rather than a defence.

What follows for practice

The practical conclusion is narrow and useful. The documents an organisation produces before a deployment are the documents that will be read afterwards. A risk assessment that records what was known, what was decided and who decided it is the organisation's protection; so is evidence that staff were trained, equipped, insured and briefed on what to do when something goes wrong.

The paper also draws attention to the position of the individual manager. Liability does not rest only with the organisation. A manager who sends a member of staff into a situation that the organisation's own assessment said was not manageable is exposed personally, and that exposure is not usually covered by anything.

Related

• Duty of Care: the Dennis v NRC ruling and its implications
• Voluntary guidelines on the duty of care to seconded civilian personnel
• What is humanitarian security risk management?