Posted By Martin CMIOSH I would like to pose a theoretical question to the collected minds of this forum. I have some views myself but I'll wait for your valued opinions before I jump in with my own views. A UK based company employs people from the UK to work on specific contracts providing consultancy services on projects overseas. These people are contracted purely for that project, they work overseas, and would never have need to visit the UK office. The question is do their activities come under the HASAW and associated Regs? If there was an accident overseas would it be reportable under RIDDOR, and could/would the HSE investigate - and could the UK company be prosecuted under Section 2 of HASAW. Finally, does anyone have any examples where a prosecution has resulted from an incident that occurred overseas? All views are appreciated!

Posted By willhiem I'll have to think about it but i would think it may depend on what type of incident occurred. Normal circumstances i would say no, but as always there is a but... Possibly if the but was associated with management and company policy which were based in the UK. I have one or two cases in my mind, but they seem to fall short of what you're saying only working in that country and not returning to work in the UK with the company because they were only contracted to work abroad.

Posted By Ron Hunter UK based company, irrespective of undertaking,must surely be bound by UK Legislation. Consider also (a) Armed Forces (b)journalists. I doubt HSE would even think about investigating overseas, but I see no reason why a prosecution couldn't be considered?

Posted By willhiem As far as i'm aware armed forces dont fall under normal health and safety legislation, while there is a duty to protect health and safety to a reasonably practicable level at most times, I think the fact that they send troops out to situations where they're likely to be ambushed doesnt exactly fit in reasonably practicable! Though one of the cases i was talking about earlier was about a person from the armed forces it didnt actually end up in a prosectution as the army were seen to have taken all necessary precautions etc. As for journalists, its an interesting one, but i'd imagine it doesnt fall under the HSE's remit, it wouldnt be feasible!

Posted By Brian Hagyard Martin Interesting question (or maybe I am just sad) and a good response from Steve, had never considered The Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2001. A quick Google search will bring up the regs, and they are very short. As I read them they only extend the requirements to territorial waters (ON, Under or Beneath) in certain specified circumstances, not to another country. I would stand with those that have said our H&S legislation is not applicable in another country and the HSE would have no jurisdiction, however I think a civil case could still be pursued in the UK for a workplace accident abroad. Brian

Posted By BLS I think it is more the case UK companies choose to follow UK legislation abroad rather than are bound by it. The Armed forces, in particular, work to UK legislation unless the host countries legislation is stricter and then they work to that (we can't flout other countries laws) but this is a choice, it is not mandatory unless it falls under The Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 1989

Posted By Martin CMIOSH Thanks for the replies so promptly. Steve - Regulation 12 of RIDDOR states: These Regulations shall apply to and in relation to the premises and activities outside Great Britain to which sections 1 to 59 and 80 to 82 of the Health and Safety at Work etc Act 1974 apply by virtue of the 1995 Order as they apply within Great Britain. i.e. if HASWA applies then RIDDOR applies. That's fine, but then the question is to what extent does HASAW apply! (The RIDDOR guidance for Reg 12 only talks about Offshore work and mines under the sea etc, which implies that more general work overseas is excluded!) Bob - I quite agree that local legislation will apply (I should have made that point clear in the original post). BTW I am one of those people which you refer to! Willheim - As far as I know the armed forces do have to apply HASAW but have crown immunity to prosecution (although I believe the crown immunity is more limited these days). Their situation is slightly different as I believe that an army camp abroad is seen as UK territory - please correct me if this is wrong! Ron - I think you've hit the nail on the head as far as I'm concerned. UK company, UK employee therefore Duty Of Care exists, therefore a Section 2 could occur, but the HSE don't have jurisdiction overseas so would be unable to establish evidence to bring that prosecution! Brian - Definitely Civil action potential!

Posted By willhiem Martin, I'm not 100% informed of UK armed forces legislation, but i do know that in Ireland the army arent bound by the exact legislation that civis are, however they choose to follow it where and when they can, hence the reason in certain cases civil claims can be made. I think the response as relating to the large multinationals was also inline with your own and rons to a certain degree. european legislation is pretty much harmonised with few major differences which i suppose helps us in our jobs but also the employer.

Posted By Brian Hagyard RoseR that had stuck in my mind too, but a quick Google search (what did we do pre WWW?) seems to indicate the prosecution is in Greece Brian

Posted By Martin CMIOSH Okay - thanks Steve! - Now for part two of the question. Since we've established that the offence must have occurred in the UK to come under HASAW, the question is does the beach in the Duty of Care occur where the accident occurred or in the corporate office where the risk assessment was completed? My view is that a risk assessment (for example) that is carried out in the UK must be "suitable and sufficient" even if the works to which it applies are outside of the UK. Afterall the HSE can prosecute for not having a S & S risk assessment even if there is no accident. Similarly a UK company is required to ensure that electrical equipment is safe to use. If it is specified and purchased in the UK then is it relevant if it is used in the UK or potentially outside the UK? Jumping forward a step to that good old chestnut the Corporate Manslaughter (and CH)Act. The body corporate is based in the UK therefore could they be held accountable for managment failings that occurred in the UK which resulted in a death abroad?

Posted By Jay Joshi From a criminal law perspective, the Health and Safety Executive has absolutely no jurisdiction outside UK except the territorial waters etc as far as the application of HASAWA and its regulations. Civil law is a different matter, and the civil law "duty of care" will apply. The UK based employees can potentially claim form the employer under civil law.

Posted By Rob T hi Martin, The question you have posed is almost impossible to answer here and would take at least 10 pages to just give the overview however - and please don't take this as a full answer - I will try in just a couple of lines to give you the gist. The RA would only be a basic standard (an effective warning) and would not bunker down to specifics. For certain places you would be required to ensure that for instance, you mention that electrical practices are likely to be to a lesser standard and as such the individual must be aware of that possibility if not on your premises. That said if your company own the premises it would be incumbent on you to try to get the building up to a standard which is to the "spirit of British Law" (English & Welsh or Scottish for those who may want to be pedantic!). Your mitigation of risks for those places which are not under your control would simply be that you have supplied sufficient information and training to enable people to make decisions to ensure that they are not at (high) risk. As far as jurisdiction is concerned - all you would have to do to ensure that the HSE in the UK were satisfied with the RA, is to prove that you had considered the risks and taken some form of mitigation. The HSE after all cannot investigate the circumstances as they have no powers outside the UK and would probably be told to go forth etc. if they tried to. There is also the case of the HSE's competence in dealing with safety abroad when they have no experience (so any good lawyer would probably have a field day if they tried it on). The only real recourse is in civil law, either negligence in tort or (if the person was a foreign national working for your company) Private International Law (which won't apply to UK individuals). Private International law in this context would deal more with where the civil negligence case would be heard and if the country concerned was considered "Forum non conveniens" i.e. not suitable, and the "controlling voice" was considered to be UK based, the case could be heard in a British court and with British standard level of compensation, if the case was proven. In respect of UK nationals it would purely be down to the standard of "care" you would be expected to provide. There have been huge payouts to people under this in the past and probably the most famous (which was in fact settled out of court finally after many "appearances") was with Granger Telecom (plus BT) and the four guys who were beheaded. The case won or fell (paid out as a win in this case as the defence fell) on the level of sufficient information and training provided to the individuals for them to make a considered judgement whether to go to Chechnya or not. Not on the fact that it was dangerous. So as you can see in the shortest possible part answer - I would suggest if you are really concerned, you contact a specialist in this area (very few lawyers do this unfortunately so the cost can be high) who can advise you. I have been dealing with cases like this for many years and, although considered suitable as an expert witness, this is purely on the basis of my experience - not on academic knowledge of the legal niceties i.e. I would be asked for an opinion of what level of H&S or security I would consider for a particular place. Fortunately most barristers haven't got a clue what it is like in Afghanistan or Iraq for instance and there I have the advantage. Sorry for being long winded but you did ask! Do you really want to open this can of worms for your company in detail? Very best of luck with this as I have spent many years trying to learn the intricacies and am still learning. Best regards Rob Todd

Posted By Steve Cartwright Martin And now you've answered the second part. Whether it does not seem right to you or not that is the law. See you knew the answer all the time. Still an interesting debate. Steve

Posted By DJ Martin/Guys, I have been reading this thread with interest and I think most people have got the general gist of the question, but I think people are missing the main point. HSWA does only apply within the UK and its territorial waters. However, a UK based company could be guilty of an offence if a death or injury occurs abroad and it (and theoretically its directors, managers, etc.) could be prosecuted in the UK because the offence would have been committed in the UK (irrespective of where the incident took place). That is because the company is based in the UK and therefore its duties are UK based duties. It is another question whether the HSE would be prepared to investigate an accident abroad and as such, whether it would ever have sufficient evidence to bring a prosecution. However, in theory it could. There is also plenty of case law making UK-based organisations liable for accidents abroad. Regards. DJ

Posted By Andrew Lochlyn Ure Garry I don't think adopting the "indigenous legislation" is an issue of choice, so it's very far from a case of "one may have to adopt". An organisation HAS to adopt. There is no decision to take. And your comment "U.K. Project Management Teams and associated Line Management are at liberty to introduce and implement the U.K. H.S.Q.E.F. Pilosophy, Stepchange Safety Culture and in-house rules and regulations" is true until that implementation conflicts with local law leading to a breach, and they they may find their 'liberty' rapidly diminishing. Any UK company with operations overseas has to comply with all local law as well as identifying applicable responsibilities under British law, so there's another jurisdiction to consider. A British company working in the Russian Federation for example is within the jurisdiction of Russia for it's local operations, and therefore has to comply with appropriate legal requirements, regardless of how counter-intuitive they may seem in comparison to current UK law, otherwise legal sanction is a possible and likely outcome. And I know of a couple of Brits that have done short time in a Russian jail for breaches of Labour Law, and they wouldn't want to do it again. A couple of oil and gas examples: The Shell Group HSE Policy and Commitment for example states "Every Shell Company has a systematic approach to HSE management, designed to ensure compliance with the law". Note that it doesn't say "British law" but "law", which means that any Shell Group company, whether it is in Nigeria, Venezuela, Kazakhstan, Canada, Iran, Abu Dhabi, the US, the UK, the Russian Federation, Malaysia, Australia, or anywhere else has a primary responsibility to comply with local law. And this is from BP's "Getting HSE Right" document - "(We will) comply fully with all legal requirements and meet or exceed these Expectations wherever we operate in the world". So the jurisdiction question has another complexity - that of operational compliance at the workface. Andrew

Posted By Rob T Hi DJ, I think you have missed the point slightly. You can be prosecuted in the UK, but only under civil law. The HSE have no jurisdiction whatsoever abroad and so they would have no right of entry, right to ask questions and indeed no right to even enter the country concerned. The local law is the only one which has any criminal factor (some countries only have H&S under civil law by the way!). If there is no law covering H&S (which I have come accross in Afghanistan and one or two other such places) then your moral duty would be to try to bring UK standards in to play in areas where you have control. A civil claim against you would then purely be based on your efforts to improve the H&S, and once again sufficient information and training.

Posted By DJ Rob, I refer you to Martin's post. The point is that the duty placed on a UK based company is to ensure... the health and safety of its employees (and others). If somebody is injured (or killed) irrespective of where the incident occurs, the company can be guilty of an offence. This is because the duty is a UK-based duty whether or not people are working abroad. All that is required for the offence to happen is that the "employer" is based in the UK. (UK company therefore UK duty). I hope this helps. Regards. DJ

Posted By Rob T But DJ, once again - not under UK criminal law! Absolute. It's only Civil law. Even the RA bit (referred to in a previous reply) is dubious and not wholly tested in court. I'm sorry, this is not based on a gut feeling it is based on actual knowledge.

Posted By Garry Adams DJ Working on the premise of your last post, if the Russians were to raise a successful prosecution against B.P., theoretical would the U.K. HSE be duty bound to pursue an action via the U.K. civil Courts or at the least an investigation ?. Garry...