White Paper | Employer’s Duty of Care for Employees Working Overseas

As an employment lawyer I have an interest in the rights of the modern day worker, particularly in the context of globalisation.  Whilst it is apparent that many Hong Kong employers require their employees to be globally mobile, able and willing to travel to increasingly far flung or remote areas of the world in search of opportunities, there appears to be little discussion or awareness around the extent of an employer’s duty of care to ensure the health and safety of such employees should they face injury or harm whilst overseas.  In a recent study that I conducted to ascertain the nature of the risks facing Hong Kong employees whilst traveling or working overseas, and the HR policies and procedures used by employers in response to such risks, I found that whilst most of the employers I interviewed had HR measures in place, such as carrying out risk assessments that take into account potential security and health risks of the location to which an employee is being sent, there was generally an over-reliance on travel insurance to ‘protect’ the employee.  Travel insurance is of course a valuable resource but it is generally only meant to be a financial risk management tool.  Accordingly, travel insurance is unlikely, by itself, to discharge an employer’s duty of care.  My study was limited to a convenience sample of 9 Hong Kong-based employers, the smallest of which employed 200 people.  Most employers in Hong Kong are in fact SME’s and so a concern is that they may not have the time or the resources to devote to this issue.  It is nonetheless, an important issue as it presents risk for both the employee and the employer.

The results of the study and a summary of an Hong Kong employer’s duty of care owed to employees required to travel or work overseas are published in a White Paper in which I recommend a set of best practices for Hong Kong employers based on a 3 pillar risk management model of ‘Policy, Prevention and Protection’.  Perhaps the most important of these practices is the exercise of conducting an employer-led risk assessment, that takes into account the location to which an employee is being sent and the individual characteristics of the employee.  The aim of the White Paper is to generate awareness among Hong Kong employers that the health and safety measures they have in place for their employees in Hong Kong are unlikely to be sufficient to discharge their duty of care when it comes to ensuring the health and safety of their employees who are required to travel outside of Hong Kong for work-related purposes.  From a policy perspective, the White Paper calls upon the Hong Kong Labour Department to issue a code of practice of safety management for employees required to travel overseas.