China. The 21st century El Dorado for many fashion businesses.
As a result executives are regularly asked to travel, perhaps to visit a factory or a distributor. Some of these visits will be to places that tourists rarely see, far removed from the glitz of Shanghai. Recent unrest among China’s Uighur community, a knife attack at Guangzhou railway station and a bomb at Urumqi in Xinjiang province have all been widely reported. But can a fashion brand ignore potential dangers to its staff when deciding whether to require an executive to travel abroad?
The starting point will be the employee’s contract of employment. Does the employer have the right under the contract to require the employee to travel abroad? Most well-drafted contracts contain such terms, but even if they are absent, it is almost certainly an implied term that the employee will travel abroad occasionally if this is a necessary and reasonable adjunct to the proper performance of his job.
But having a well-drawn contract does not give the employer a free hand to impose its requirements on the employee – it will have to address any concerns that the employee may raise, and cannot simply insist on the trip. An executive asked to travel to a factory in Xinjiang may well have such concerns, which the employer will be well-advised to consider.
In addition to the terms of the contract, an employer also owes a duty to its employees to take reasonable care of them, to take all reasonably practicable steps to provide a safe place of work and to avoid dangers that are reasonably foreseeable. In short, employees must not unreasonably be put in harm’s way. But that duty does not mean that the employer must simply discard its plans and ignore the Chinese needs of its business. A balance must be struck. The employer must first consider whether the employee’s concerns are reasonable and, if so, take reasonable steps to avoid any identified risks. If after due consideration, and the all-important consultation with the employee, the conclusion is reached that travel must take place and can take place without unreasonable risk, the employer will be entitled to proceed. Any refusal by the employee would ultimately be a disciplinary matter.
A reasonable employer would consider a number of options. Can the meeting take place somewhere else, in a safer location? Can the distributor visit the UK? What advice does the Foreign Office website provide? If it states that travel is safe, that will assist the employer. Will a virtual meeting by video conference work as effectively? That might be suitable, but sometimes nothing works as well as a face-to-face visit. Is suitable insurance in place, and what does the employer’s insurer say about travel and the risks? In extreme cases, can local security be put in place for the travelling executive and/or appropriately secure travel arrangements made so that public places are avoided?
So, if you are sending one of your employees to China anytime soon, take care!