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Legal effects of floods in Kent throw up staff-pay issues and contract disputes

17 February 2014
by Chris Price

With many areas of Kent still under threat from flooding, a number of businesses are faced with the knock-on legal effects.

Flooding across the county over Christmas and since the turn of the year has thrown up many unexpected scenarios for employers.

Many businesses have been unable to complete orders because of transport issues or a lack of staff turning up for work.

The flooded junction of Barker Road and Tonbridge Road in Maidstone

The flooded junction of Barker Road and Tonbridge Road in Maidstone

Lawyers have been examining contracts to ensure their clients are absolved of blame if they are unable to meet contractual requirements.

Meanwhile, many employers have been forced to tighten their belts because of lost
earnings.

Many have been examining what they have to pay staff who cannot get into work, as they struggle to balance the books.

Solicitor Tilly Clarke, from Kings Hill-based Vertex Law, said: “While such problems are rare, even the most organised business should be prepared for the unexpected and the possibility of being in breach of contract.

Heavy rain over Christmas caused wide spread flooding in and around the Maidstone area

“The impact of such difficulties will depend on the contracts you have in place. In particular, businesses should look to include force majeure (FM) provisions to excuse their non-performance.

“The clause, which translates as ‘superior force’, typically excuses one or both parties from delivering on its contractual obligations, either in whole or in part, following unexpected events or circumstances outside that party’s control.

“These events include acts of God such as extreme weather, flooding, earthquakes and even volcanic eruptions, as well as social factors such as violence or civil commotion.”

Yet even with an FM clause in a contract, things are not always simple.

Many clauses will carry requirements, which can mean a business is still in breach of contract if they are not followed.

For example, some may require the company to notify the customer within a certain period or do all it can to minimise the disruption to the other party.

Vertex Law solicitor Tilly Clarke

Vertex Law solicitor Tilly Clarke

Ms Clarke added: “Absence of an FM clause would leave the supplier in breach, assuming its obligations are clearly set out in the contract.

“If you are a customer who has suffered late or no deliveries from your own suppliers as a result of such a disaster, check the wording of your contract carefully to see if you might be able to take further action.”

As well as businesses losing money, many employees have been considering their legal position.

Many have not been paid because they were unable to get to work because of the floods.

Solicitor Ben Stepney, from Thomson Snell & Passmore, which has offices in Tunbridge Wells and Dartford, said: “The first place to check is the contract of employment.

“This may specify whether an employee is entitled to be paid or not when they cannot make it into work.

“Many employment contracts will not address this though. If not, then the general position is that if the employee does not provide any work and the workplace remains open, they are not entitled to be paid.

Ben Stepney, a solicitor in the employment team at Thomson Snell & Passmore

Ben Stepney, a solicitor in the employment team at Thomson Snell & Passmore

“However, taking this approach may lead to resentment amongst employees, especially where they cannot get into work for a number of days. After all, the employees are not at fault here.”

To deal with this issue, Mr Stepney says businesses should invite employees to take the time as annual leave or allow them to work overtime to make up the hours.

Another option is to let employees work from home or at a different workplace.

He said “The best advice is to plan ahead.

“Make it clear in advance what your policy is on this issue so if the bad weather strikes again, you and your workforce know where you stand.

“Also, bear in mind that all employees are entitled to time off to deal with emergencies concerning their dependents, such as a school closure.

“But there is no right to be paid for this time off.”

For legal advice related to flooding issues, contact Vertex Law, part of Cripps Harries Hall LLP, on 01732 224000, or Thomson Snell & Passmore on 01322 623700.

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