Employment Law Snapshots: Detention of an Employee Whilst Working Abroad

Internationally mobile employees must be observant of local laws and customs, which can present particular difficulties when they travel to countries which are facing geopolitical uncertainty and civil conflict. As recent events in Iran illustrate, tensions can escalate rapidly, and the risks of arrest and detention by local authorities or militia are impossible to predict. The detention of the British Ambassador to Iran by Iranian authorities on 11 January 2020 was brief, but very few employees can rely upon the full force of the British government being brought to bear so quickly. Where the reason for the international travel is work-related, the Employer clearly owes a duty of care to the Employee. This will include ensuring that FCO travel advice is followed, the Employee’s travel and accommodation arrangements are made with reliable providers and that the Employee is properly insured, well briefed in advance on local laws, customs and etiquette and provided with appropriate support on the ground during their trip (often through local agents or “fixers”). But what actions should you as an Employer take if, despite these preventative measures, your Employee is detained during a business trip abroad, whether as a result of their own wrongdoing or through no fault of their own?

• If possible, contact the local authorities (potentially through a local agent if there are language barriers) to obtain information about the reasons for the Employee’s detention and any other relevant circumstances
• Consider arranging for legal representation for the Employee by a local law firm with Criminal law expertise
• Contact the FCO and any other organisations who may be able to assist the Employee (e.g. Prisoners Abroad)
• Consult with the Employee’s family in the UK to ensure that they are aware of the situation and the steps being taken to assist the Employee
• Speak to any colleagues who are accompanying the Employee on the trip to get their informal statements, and consider repatriating them quickly
• Consider the Employee’s itinerary – are there meetings with clients, suppliers or other business partners which need to be postponed?
• Contact your insurer – you may need to cancel hotel accommodation, flights and other incurred bookings, and make new arrangements for the repatriation of the Employee
• Depending upon the likely length of the detention, and the reasons for it, you may want to make a decision about the Employee’s pay and benefits –  must they be continued or can they be suspended?
• Consider whether an internal investigation and any disciplinary proceedings may be necessary if the reasons for the Employee’s detention may constitute misconduct under your own rules and procedures
• If the Employee is released pending further investigation but has their passport confiscated, can you make alternative arrangements for them to live and work in a safe environment whilst the local legal process takes its course?

The appropriate actions to take in each situation will depend upon the particular circumstances – there is no easy tick list to satisfy the Employer’s duty of care. The Employer will need to find a balance between its empathy and support for the Employee, even it feels that the Employee may bear a degree of responsibility for their arrest and detention, whilst showing due respect for local laws, customs and etiquette, particularly in regions with great commercial significance for the Employer.