What development professionals need to know about 'duty of care'

Talk of aid organizations’ duty of care toward their staff resurfaced when aid worker Steve Dennis sued former employer Norwegian Refugee Council for gross negligence — and eventually won. Lawsuits against international aid organizations are nothing new. Take the case of former American aid worker Flavia Wagner, who was kidnapped in the Darfur region in 2010. She filed a case against her then employer, Samaritan’s Purse, for failing to provide adequate security. The difference, however, is that Wagner settled out of court, a practice that Ike Evans, a seasoned international security consultant in the nonprofit sector, said is common in the aid industry and makes Dennis’ case more the exception than the rule. “Since we’re having really serious discussions on duty of care, nobody’s won. How many cases have you heard of wherein the NGO worker sued the organization for failure to provide adequate security or aftercare, and doesn’t settle?” he told Devex. And this is perhaps why there’s little publicity or transparent public discourse that provides the aid community a clear picture of how prevalent such cases are — information useful to an industry whose staff members are increasingly exposed to kidnappings, bombings and road accidents. The words “duty of care” have been used so often in the NGO security space that Evans is on the fence about the argument that Dennis’ case is serving as a wake-up call to aid organizations to up their safety and security risk procedures. He points to the number of security staff a number of organizations now employ, from headquarters down to the subnational level, or what many would refer to as “area office” in a country mission, as well as the huge presence of a security industry now serving the nonprofit community. “Change hasn’t just come to NGO security — it’s been pursued by security professionals and the organizations they support — and it was being pursued before lawsuits were being brought for notable failures,” he said. But he admits there’s an increasing awareness, and concern, in the industry of the likelihood of getting sued. In fact, he shared, he just renewed a contract with a U.S.-based nonprofit client who wants to “go deeper on those issues,” in part because of Dennis’ high-profile case. But being sued is not the only motivation moving organizations to action, Evans suggested. He said he knows of CEOs who are “genuinely worried, staying up late at night worried about their people in the field.” So it’s not indifference or money — although Evans said funding is always an issue. What he perceives as the issue instead is leaders of organizations just not knowing where to start with providing safety and assessing its employees’ security risks. “The issue I encounter time and time again, is that they just don’t know where to start,” Evans said. “When they look at the universe of security they don’t know how navigate it, or where they want to go. They can’t see how to get ‘there’ from where they are.” Understanding duty of care When approached for help, Evans usually start by asking organizations whether they have a safety and security policy in place, what security procedures and guidelines they utilize — and whether they’re actually implementing them. For those that have little policy in place, he starts by explaining what “duty of care” is all about — that more than a moral and ethical duty, it’s a legal obligation by an employer to provide a safe working environment to staff, and take all possible measures to safeguard them from any potential dangers in the workplace. To do that, Evans said an organization needs to be a “good scenario creator.” Imagine a female staff member traveling from the United States to Nigeria has a stopover in a conflict-affected country, Evans said. Without a visa for that country, she’d have to stay in the airport terminal for a few hours. But what if there’s a delay that would require her to spend longer hours in the terminal? Maybe her cellphone battery is almost dead and she’ll soon lose her ability to communicate. What if she’s then questioned or harassed by security, or brought to a secluded area where she feels uncomfortable? Evans asked. The question organizations need to ask themselves is: Could they have prevented that? And if so, how? “If the organization is not talking to you about security, it is a sign that you need to start talking about it or looking for the door. I don’t care if the project is in some location you regard as safe. Safe places are safe until they are not and then everyone wishes they knew what to do.” --— Ike Evans, international security consultant But here is where things get more complicated: Legal obligation is not all encompassing. An organization’s legal obligation to its full-time staff member may differ from its legal obligations to a consultant, volunteer or locally hired staff — problematic given that, in some contexts, national aid workers are as, if not more, exposed to risk as their international colleagues. The same is true for contractual waivers. Some organizations may use this in defense of a negligence claim, but what may be admissible in court in one country may not be applicable in another. For example, in a number of European courts, such waivers restricting organizational liability for negligence in case of staff injury or death may not have any legal effect, whereas in some U.S. states it may help reduce an organization’s liability, although there are exceptions to that rule, according to a 2011 policy paper published by the Security Management Initiative. But one of the most complex parts of duty of care is identifying who is accountable for whom when an aid program is funded by a donor government. When a government donor agency outsources a project to a private company or nongovernmental organization in an area with a high terrorism threat or high risk of violence, such as Afghanistan, Sudan or southern Philippines, it’s difficult to discern whether ultimate accountability lies in the project team, the company or NGO the project was outsourced to, or to the donor agency. This is particularly problematic in a situation where a donor agency, say the U.S. Agency for International Development, includes in a contract that the company or organization implementing the project is responsible for the safety and security of its own personnel, and yet almost all activities are branded as a project of USAID, explained Matt Williams, Philippine director at Pacific Strategies & Assessments, an independent business risk consultancy firm. If an American employee from imaginary U.S.-based contractor DevCo gets kidnapped, for example, media will report that a U.S. government worker was kidnapped. Assuming the project was funded by the U.S. government — and the State Department issued advisory to U.S. citizens against traveling to where the kidnapping took place — the U.S. government holds the reputational risk in terms of duty of care if there is an incident. DevCo, meanwhile, would hold the contractual duty of care, Williams explained. But every project is different, Williams said, so aid workers need to be aggressive in asking questions about their own security and who is responsible for it upfront, and not “blindly assume” that an effective security plan is in place, which he said often happens to aid workers “motivated by a new, exciting opportunity to make a difference” or those seasoned aid workers who’ve become used to a life of armored cars and journey plans. “Many seasoned aid workers with 15-plus years working in conflict regions have grown up in a professional life layered with security,” Williams said. “However, this can eventually lead to some level of complacency and an attitude that says, ‘I have worked in some of the most dangerous places in the world so I am not worried about security. I spent 10 years in Afghanistan so I am not worried about security in Papua New Guinea…” From theory to practice The bottom line however is that all aid organizations have the legal responsibility to keep their staff safe, or mitigate their risks on the job. This mostly comes down to organizations needing an effective security management policy in place that is both in document form and applied in practice. “If you’ve got a security and safety policy you’re not adhering to, that’s no good, Evans said. “Not having one is no good either.” There are several toolkits and guides available online developed by security experts that organizations can access, one of the latest being the European Interagency Security Forum’s Security to go: A risk management toolkit for humanitarian aid agencies, which provides a step-by-step guide for organizations on how to assess risks down to the detail of the points to ponder when securing insurance coverage for staff. A 2010 paper by the Humanitarian Practice Network also provides a helpful guide for identifying who is responsible for what type of security-related task or decision, as well as a guide for recruiters on identifying the right field security managers for a mission. But what Evans wants to see more of — like Williams — is for aid workers to actively voice their security concerns to their organization. “We talk so much about building sort of the awareness in the agency of others in the development community, but there has to be a safe place in the community for NGO workers to say, ‘Hey look, I don’t feel good about this. Something ain’t right. And then you put a waiver in front of me and tell me ‘Hey I want you to tell me you’re never going to sue me?’” Evans said. “I find it unfortunate and incongruent that in a community where the rights and agency of individuals are of such interest and import, some organizations ask staff to waive theirs,” he added. What he proposed instead is for both organizations and staff members to agree to document all the trainings, briefing and knowledge shared on security in the field, and engage a lawyer in the process so both parties are aware of each other’s responsibilities. Devex Professional Membership means access to the latest buzz, innovations, and lifestyle tips for development, health, sustainability and humanitarian professionals like you. Our mission is to do more good for more people. If you think the right information can make a difference, we invite you to join us by making a small investment in Professional Membership.