Liability of the Expert
During a TIWB Programme, an Expert may encounter issues of professional liability (related to his/her professional activities) and/or workplace health and safety. Host Administrations, Experts, and Partner Administrations should ensure that potential liability issues are carefully considered and adequately addressed in advance of the TIWB Programme. Boundaries of protection for liability and workplace safety requirements are important to structure any TIWB Programme. In most cases, this is reflected in the Programme Terms of Reference through a clause that addresses the topics of liability and indemnity.
The UNDP's Social and Environmental Standards provide a framework for minimizing and mitigating risk (which can be built into the Programme Terms of Reference) and outline measures to address such problems.
Issues of professional liability may arise when any wrongdoing, irregularity or incompetence by foreign tax Experts is observed during their official duties for a TIWB programme. Resident officials of the Host Administration are often protected from being held personally liable in such cases by local legislation. It is important to ensure that equivalent protections are afforded to the Expert. However, where fraud or other criminal acts are involved, domestic legislation does not provide protection for the acts or omissions of local tax officials.
As the Expert may not be familiar with the legal framework and customs of the Host Administration, there is a greater risk of misunderstandings or errors that could give rise to professional liability. It is incumbent on the Host Administration to provide the necessary details about the legal framework and customs in the host country to the Expert prior to the start of the TIWB programme.
Workplace health and safety liability
Workplace health and safety of the Expert are central to a TIWB programme. The Expert should have protections in place for workplace health and safety that are equivalent to those of Host Administration officials.
In most cases, this will require the inclusion of appropriate provisions in the Terms of Reference if the Expert's position is not covered by existing domestic legislation in the host country. Provisions could exist in regards to Host Administration office building access, availability of appropriate office equipment, a safe working environment etc. In some countries, the protections provided by workplace safety laws for local tax officials also extend to the tax official's journey to and from their place of work. Whether these laws extend to the Expert should be considered.
Other concerns may arise in the specific case of a seconded Expert. Due to legislation in the Expert's home country/administration or the Expert's home employment contract, the Partner Administration may remain liable – for professional as well as workplace health and safety – for the Expert as its employee during the course of the TIWB programme, even though the Expert may also become or be considered an employee of the Host Administration. The Partner Administration may seek to transfer this liability to the Host Administration, to the extent possible, through modification of the Terms of Reference.