Swine Flu – The Law

by Kidd Rapinet on August 12, 2009

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

Simon Robeson a consultant with Kidd Rapinet says:

“The number one question has been whether swine flu is ‘force majeure’. Most commercial contracts include a clause 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.

“Another issue is often whether the terms and conditions of sale of a supplier apply or the conditions of purchase of a buyer. We can advise on this. 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.

“Another issue is staff sickness. 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 workmates. The employment law issues need to be sensitively handled and legal advice sought where necessary.”

Call Simon Robeson on 020 7024 8074 for advice.