11/25/2015

Act of terror versus act of God. How to act as a service provider?

“But first there was life, hidden beneath the blah, blah, blah… It’s all settled beneath the chitter chatter and the noise, silence and sentiment, emotion and fear. The haggard, inconstant flashes of beauty. And then the wretched squalor and miserable humanity. All buried under the cover of the embarrassment of being in the world, blah, blah, blah… Beyond there is what lies beyond. “
[La grande Belezza]

We cannot close our eyes to the present terrorist threats and the widespread existing fear. The terror threat level for the Brussels Capital Region is being kept at the maximum of 4 (being a very concrete and imminent threat) and impacts the continuity of enterprises in the Brussels region. Also other European countries raised their threat levels.

From a legal point of view, there are lots of questions popping up. Obviously, our legal system is not written nor (well) adapted to similar exceptional events.

I will focus here on some relevant questions for IT providers delivering services for clients based in the Brussels Capital Region.

How to deal with an IT consultant who’s afraid to head off to Brussels in order to continue an implementation at the premises of a client?

Every employer has the duty to use due care, and, therefore, his employees should be able to work in “respectable working conditions”. Consequently, the employer is obliged to provide his employees with some alternatives in order to be able to serve the customer in a good manner: online meetings, postponement of appointments, … upon good faith discussion with the client.

What to do in case of mandatory closure of the office of your client?

If the company of your customer has been ordered to close and you – as a service provider – are no longer able to deliver services (meaning: there are no further alternatives at all to – temporarily – deliver the requested services in accordance with your client’s requirements) due to the closure of your client, we can conclude that there is a “force majeure” (act of God) event. It is beyond the control of the affected party and not susceptible to being planned for or avoided by reasonably prudent persons or entities providing or operating a business similar in scale and scope to the affected party.

Should such a case arise, I suggest notifying your client asap of the observance of force majeure. Consequently, the delay of services is no longer attributable to your company and safeguards your company from a liability claim due to the existence of a force majeure event.

The company that has been ordered to close is no longer obliged to pay her employees. The employees of  businesses in Brussels affected by the terror are however entitled to temporary unemployment payments “due to force majeure.”

What in case of economic damage to your company due to the terrorist threat level?

Normally the damage should be reimbursed by the ones who have caused the damage. No need to state this will be practically impossible. There is a chance, however, that our government will take up further long-term actions in this regard.

 

Of course – just like everyone – I sincerely hope that the terrorist attacks can be pushed back by a worldwide solidarity.
Law is about justice and not about terrorism.

 

Author: Florence Leterme. You can follow Florence on Twitter (@FlorenceLeterme) or connect with her on LinkedIn