Who Benefits from "Duty of Care"?

Jonathan Edwards and Michaël Neuman

“I am somewhat worried that by elevating our duty of care obligations to a level that may meet liability standards in home societies we risk fundamentally sabo-taging our operational mission.”
MSF Operations Manager, 2015

Rooted in the common law legal system, the principle of duty of care is broadly defined as an employer’s duty “to take reasonable steps to pro-vide a safe system of work to avoid the risk of reasonably foreseeable injury, whether physical or psychiatric.”61 This approach dates back to nineteenth-century Britain when reaction to appalling rates of morbidity and mortality in factories and mines led to the introduction of a series of health and safety laws and regulations that included access to compensation for injured workers. This legal and regulatory framework advanced throughout the twentieth century, consolidating during the 1970s into the “workplace health and safety” regimes that wield such influence on societal understanding of risk and liability issues, particularly in English-speaking countries.62 Similar provisions exist in continental Europe where they are embedded in the labour laws of various countries.63 French civil labour law, for instance, stipulates that employ-ers (French or otherwise) have the general obligation to ensure a safe working environment for their employees: “The employer shall take all the necessary measures to ensure the safety, and to protect the physical and mental health of workers.”64 Employers thus have the obligation to assess and manage any foreseeable risk. French case law has gone on to develop a broad interpretation of this obligation, regardless of the level of risk employees may be subject to.65

As for other high-risk occupations, laying out the practical implica-tions of duty of care from the practitioner’s perspective is particularly challenging, as, by definition, the act of providing relief in situations of conflict involves an exposure to risk. In 1997 and 2003, the NGO con-sortium People in Aid66 set out a “Code of Best Practice” to define the employer’s obligations under duty of care : briefing staff on the situation in the place they are to be assigned to, keeping records of work-related injuries, accidents and fatalities and performing regular reviews of security procedures. These norms in duty of care have now been widely adopted by aid agencies as standard67 and feature regularly in discussions on best practices in human resources management for humanitarian organisations.68 Yet the duty of care frame still raises key questions around the potential practical and legal implications, which need to be evaluated on a case-by-case basis as they depend as much on the contexts of intervention as on national legal frameworks.

While originally introduced into the aid sector as a good practice standard in human resource management, “duty of care” is increasingly considered from the legal and liability perspective. “Can you get sued?”, a review conducted by Geneva-based think tank Security Management Initiative in 2011, examined international aid organisations (IAOs) with legal obligations under both common law jurisdictions and European strict liability and concluded that, despite a growing awareness of legal responsibilities towards staff, “serious gaps exist between legal require-ments and current practice as to employer obligations.”69 More precisely, they point to a majority of the IAOs interviewed as lacking “a proper occupational health and safety protocol”, 30 per cent any “institutional-ised security management and reporting” and 66 per cent without a budget allocated expressly to security. Organisations that have not decided to consider security as a fully-fledged professional sector are thus deemed to be legally at fault. Drawing from recent legal cases in the com-mercial sector,70 the authors also warn of the possible damages that could be awarded if judgments are made against organisations found to be in some way negligent. In the same vein, the authors, one of whom is specialised in employment law and personal injury law, urge aid organisations to seek legal advice, conduct routine in-depth risk analyses, and design and implement risk mitigation procedures. Though scarcely able to produce more than one case of judicial liability in the past thirty-five years,71 unsurprisingly, the authors insist on the need to implement systems recommended by experts to analyse and mitigate risk.72

This approach, as the title “Can you get sued?” suggests, sets out as much to protect an organisation from liability risks as to protect an indi-vidual employee from danger. Opinions across the MSF movement still differ regarding the significance and implications of the ever-increasing focus on duty of care prevalent in Western society, and more particularly in the aid sector. Operational managers are more likely to highlight the risk of compromising MSF’s operational scope through a narrow and bureaucratic understanding of the requirements of duty of care; board members from particularly litigious home countries are more sensitive to personal exposure to liability;73 and human resources managers are prin-cipally concerned with the operational sustainability gains to be found in properly implemented HR policies that care for their employees (and not simply their security). The debates are many, reflecting the far-reaching and contradictory ambitions of the concept.

But there are signs within MSF of an increasing focus on the legal dimension of duty of care. For example, during the response to the Ebola emergency in 2014, several MSF sections introduced a page-and- a-half-long assumption of risk and acknowledgement of liability form to be signed by international staff prior to leaving for the field. It includes the following clause:
I understand, acknowledge and accept that participation in an Ebola field mission, by its very nature, involves certain physical and health risks that cannot be eliminated regardless of the care taken to protect Ebola field mission staff. Those risks include the risk that I may contract Ebola. [...] I knowingly assume all such physical and health risks. [.] I understand that MSF is taking every precaution to protect me while I am participating in a Ebola field mission but that I am ultimately responsible for my health and my safety in the field.

The form ends with an “informed consent for medical treatment” clause, according to which staff “delegate to MSF [...] all power and authority” regarding potential medical treatment and management of care in the event that they contract or are suspected to have contracted Ebola during their assignment. This document is a manifest attempt to mitigate the threat of legal action. It makes clear that MSF has taken all necessary protection steps, thereby indicating that any contamination would be the responsibility of the contaminated person. Its introduction came within the somewhat exceptional context of an epidemic response suffused with a sense of danger for employees, their families and those around them that was deemed to be unprecedented. Nevertheless, it is hard to conclude that the sole objective of this expression of duty of care was to improve the safety of personnel; rather, it was a testimony to the progressively legal nature of the employee/employer relationship.

The pervasive interpretation of duty of care in terms of “institutional risk” is also found in the Volunteer Agreement that all volunteers employed by MSF’s French section have to sign prior to departing on mission. In addition to an already well-detailed contract, under the terms of which the volunteer commits to share in MSF’s Charter and “principles” and “acknowledges that he/she has been warned and is aware of the inherent risks linked to the mission allocated to him/her”, one annex stipulates that the volunteer commits “to observe and abide by the security rules and guidelines established by MSF and its repre-sentatives [...] and to comply with them at all times”. It is worth noting that this clause was recently reintroduced having been removed a few years ago when a number of staff members reacted negatively to it, find-ing it too prescriptive of their conduct. Partly a response by the manage-ment team to problems of misconduct, the reintroduction of this clause also reflects MSF’s willingness to regulate behaviour as a means of ensuring strict adherence to risk mitigation procedures such as those recommended in the legal advice discussed above.

Looking at the key indicators identified by People in Aid to assess aid agencies’ compliance with duty of care requirements in terms of security, it could be argued that MSF is a “responsible employer”. How far this translates to meeting duty of care obligations in legal terms is a matter of dispute as, again, the complexities of managing the legal environments for an organisation with employees from dozens of countries are staggering. And yet another critical issue is the status of national staff. Current inequities in the relationship between MSF as an employer and its workforce—as highlighted recently through the different levels of access to healthcare and support provided to international and national staff working with Ebola patients—must be challenged.

If organisations do not find suitable solutions themselves, then they may find them imposed by others, as in the case of Irish Aid’s “Guide-lines for NGO Professional Safety & Security Risk Management”, which aim to help “NGO partners to fulfil their duty of care responsibilities towards their own staff”.74 These standards recommend appropriate recruitment, training, risk assessment, consent, mitigation measures and legal health and safety compliance for all staff. Deriving their influence from their link to accreditation and funding eligibility from Irish Aid, this “guideline” approach may well be widely replicated by other donors and governments. This has yet to happen, but if it were to be broadly adopted the implications for humanitarian organisations could be significant.

So the challenge facing MSF and other such organisations is to first define their own vision of this somewhat nebulous concept of duty of care and then to establish the extent to which it is being achieved. An organisation-wide response to the question “what is your duty of care to your staff?” should not invoke an institutional risk mitigation approach, but leaving this issue to those managers closest to a mainstream and somewhat legalistic interpretation of duty of care, or to external regulators, risks doing exactly that.

NOTES

61. External legal advice to MSF-Australia, 2014.
62. Ian Eddington, An historical explanation of the development of occupational health and safety and the important position it now occupies in society, Brisbane : Queensland Safety Forum, January 2006.
63. And internationally, as seen in the International Labour Organisation’s Occupa¬tional Health and Safety Conventions of 1981 and 2006.
64. French Labour Code, L-4121-1.
65. Cour de cassation, judgment n°2575, 7 December 2011, Société Sanofi Pasteur/ Peyret”.
66. A network of international humanitarian aid and development agencies.
67. Duty of care was one of the ten Humanitarian Accountability Project Standard Principles first drafted in 2007. The ICRC began to formally adopt duty of care language in 2009 after a series of critical incidents.
68. For example, Humanitarian HR Conference Europe 2012, “What Duties? Who Cares ?”, Amsterdam, and InterAction Duty of Care symposium 2014, Washington D.C., which included a presentation by MSF-Holland’s HR manager.
69. Edward Kemp and Maarten Merkelbach, “Can you get sued? Legal liability of international humanitarian aid organisations toward their staff”, Policy Paper 74, Geneva: Security Management Institute, 2011, p. 17.
70. See the “Karachi litigation case”.
71. See Samaritan’s Purse vs Flavia Wagner, http ://www.reuters.com/article/2011/ 05/19/us-newyork-kidnap-idUSTRE74I70A20110519, last accessed 30 Decem¬ber 2015. However, as Carolyn Klamp has pointed out, the low number ofreported cases could be due to the prevalence of confidential legal settlements. Carolyn Klamp and Associates, “Duty of Care”, RedR Safety and Security Review Issue 7,
2007. More recently a court in Oslo has found the Norwegian Refugee Council guilty of gross negligence in its handling of the kidnapping of Steve Dennis and three other staff members in Dadaab, Kenya in 2012, http://www.irinnews.org/ report/102243/nrc-kidnap-ruling-is-wake-up-call-for-aid-industry, last accessed 30 December 2015.
72. See Chapter 5, p. 71.
73. For example, boards have voiced their concern regarding their liability in the event of international staff becoming fatally infected with Ebola and, less urgently, in relation to the exposure to asbestos of international staff working in the field. Jonathan Edwards, “Duty of Care in MSF”, Internal Report, Medical Care Under Fire, Paris: MSF, 2015.
74. “Guidelines for NGO Professional Safety & Security Risk Management”, Dublin: Irish Aid, 2013, p. 1.