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Monday, 17 August 2009

Swine Flu - The Law

by Peter Carey, Partner Sedgwick Phelan and President, Rochdale Local Chamber Council

Lawyers are finding an increase in requests for legal advice about the implications of the swine flu pandemic. Do you know your legal position?

On 6 August the Daily Telegraph reported that 'we're a nation of skivers.' The report highlighted the problem of employees using the current swine flu epidemic as an excuse to take time off. However, there are also genuine problems facing employers arising from this health scare with matters predicted to get worse in the autumn.

The number one question has been whether swine flu is 'force majeure?' Most commercial contracts include a call called force majeure. If an Act of God, war, trade embargo, possibly a strike and other circumstances beyond the control of a party to a contract prevents their complying with the contract, they are excused. However the devil is in the detail. If the clause specifically mentions disease it is going to be much easier to say this is a circumstance beyond the party’s reasonable control. If staff are off sick then it may be reasonable to expect that employer at high cost to buy in contracted labour for example. It is not enough to refer to circumstances beyond a party’s control. It is much better also to list what amounts to force majeure including listing issues such as the current Swine Flu problem.

Another issue is often whether the terms and conditions of sale of a supplier apply or the conditions of purchase of a buyer. Sometimes it is unclear and usually the party who “got in last” before the work was done finds their terms prevail. It is important to know because even on issues such as force majeure there will be major differences between conditions of purchase and supply. What is very clear is that swine flu or other sickness amongst staff is not automatically going to be force majeure. Individual clauses need to be considered. We can help advise you on your contractual position and draft your contract terms to ensure they excuse your non performance of a contract in situations such as this.

It is recommended that business clients review their terms and conditions to avoid being caught out by having insufficient staff to service exisitng contracts thereby breaching the contract terms.Sedgwick Phelan can assist in advising clients on their trading terms or draw terms of business for business clients who have no such terms at present.

Call Peter Carey on 0161 653 5299 for advice on trading terms and conditions.

Greater Manchester Chamber has also published guidance on the Chamber website.

However, if an employer is facing staff problems with employees not turning into work and using the current pandemic as an excuse, what can be done?

Chris O'Rourke, from Sedgwick's Employment team provides a different perspective on matters from the employment point of view.

He comments: "An issue for employers arises with genuine staff sickness. But some may not be so 'genuine'. As the Daily Telegraph has reported, plenty of employees are using this as an excuse to skive and employers have perennial problems over when they can sack employees for faking sickness. Although absence levels have plummeted in the private but not the state sector in the recession as people worry about losing their jobs, some are still seeking to milk the system with faked swine flu and other illnesses. However others again may be coming into work when they are too ill and may infect their work mates. The employment law issues need to be sensitively handled and legal advice sought where necessary."

Call Chris O'Rourke on 0161 653 5299 for further employment advice.

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