Duty of Care: a review of the Dennis v Norwegian Refugee Council ruling and its implications
An employment tribunal in London upheld a claim that a humanitarian employer had failed in its duty of care to a member of staff. This review sets out what the judgment turned on and why it reached further than the individual claim.
Download the review (PDF, English)Why the case mattered
For years the duty of care sat in an uncomfortable place. Everyone accepted that it existed. Almost nobody expected it to be tested in a courtroom, partly because the practical obstacles to bringing a claim are considerable: the incident usually happens far from the employer's seat, the evidence is scattered, and staff who have been harmed are rarely in a position to litigate.
This case cleared those obstacles. The claim was brought in an employment tribunal in the employer's own jurisdiction, by a former member of staff, and it succeeded. The result established that the obligation is enforceable, that the forum is available, and that the standard applied is the ordinary employment standard rather than something softer invented for the sector.
What the judgment turned on
- The employer's own assessment. What the organisation knew about the risk before the deployment, and what it recorded. A risk that has been identified in writing is a risk the organisation has to do something about.
- The gap between policy and practice. Whether the organisation's written standards were actually applied at the point where the decision was taken, and whether anyone checked.
- What was reasonably practicable. Not whether the harm could have been prevented with hindsight, but whether reasonable steps were available at the time and were not taken.
- The consequences for the individual. The judgment treated the effect on the person as the measure of the harm, not the organisation's intention or the absence of malice.
What it means for organisations
The review draws out the practical consequences, and most of them concern documents rather than intentions.
An organisation should be able to produce, for any deployment, the risk assessment that preceded it, the decision that followed from it, the name of the person who took that decision, the training the individual had received, the equipment and insurance they were given, and the record of what happened next. If any of those cannot be produced, the organisation has a problem that predates any incident.
The second consequence concerns the manager. A decision to deploy into a risk the organisation's own assessment described as unmanageable is not a decision that can be hidden behind a policy document. The judgment made clear that the standard is applied to what was actually done.
The third concerns scale. The duty does not vary with the size of the organisation. A small agency cannot be expected to match a large one, but it is expected to have considered the risk and to have taken the steps that were within its means. Doing nothing because there is no security budget is a choice with a legal consequence, not an excuse.
Related
Practical guidance and research on the security of humanitarian staff, for the organisations that send them.