Employer's Duty of Care for Business Travel

Function

The duty of care is the employment-law foundation of travel risk management. Art. 328 CO obliges the Swiss employer to respect the employee’s personality and, to protect life, health and personal integrity, to take the measures that experience shows to be necessary, that are applicable according to the state of the art and that are appropriate to the circumstances of the business. In Germany the same duty follows from section 618 BGB and the basic duties of the Occupational Safety Act including risk assessment, in Austria from section 1157 ABGB and the ASchG. At common law the employer is liable under the duty of care for foreseeable hazards to which it exposes employees. The duty does not end at the factory gate: it extends to trips the employer directs and grows with the hazard level of the destination country.

Distinctions

The duty of care gives rise to duties to act – risk assessment before the trip, information and training, reachability and emergency organisation, if necessary refraining from the trip – and to a duty to equip, which includes insurance cover. Business travel insurance finances medical treatment, evacuation and capital benefits, but it replaces neither the risk assessment nor the decision whether a trip is reasonable. If the employer breaches its duty, it faces damages claims from those affected, recourse by social insurers in cases of gross negligence, directors’ liability and reputational damage. Statutory accident insurance covers business trip accidents as occupational accidents but does not relieve the employer of prevention.

Practical Note

ISO 31030 specifies what “appropriate measures” mean in the travel context and is increasingly used by courts and insurers as a benchmark. A documented travel policy, country risk classes and approval processes for high-risk trips are the evidence of a duty of care fulfilled.