Silver Linings: Looking Beyond Today’s Global Pandemic

Without visa and with total disregard for political alliance, social class, colour, race and all known classifications; Coronavirus disease (COVID-19) has been on a world tour. From Asia to Europe to Africa and all the continents of the world, the virus has roamed free! Only a few countries are yet to feel the impact of this minute virus threatening the existence of our world as we currently know it.

But, is it even remotely possible that something positive may come out of this pandemic for you? Read on to see.

There is the projection that a new era awaits lawyers after this pandemic because there will be an influx of cases. Below, we attempt to identify some of the areas you should be focusing on as litigation lawyers or in-house counsel so that you are prepared and well equipped to properly advise your clients/employers when all of this is over.

1. EMPLOYMENT

a. Remote work

For aeons, businesses and organizations have toiled with the idea of telecommuting/remote working but it was never fully practised. However, with the invasion of COVID-19, one of the most prominent temporary measures adopted by employers in scaling through this tough time is for their staff to resort to remote working. Your clients will want to know if remote working is legal; and whether an employer can compel an employee to work remotely.

b. Leave

Because a lot of companies were not prepared for remote working, a lot of other options were adopted by employers to mitigate the loss to their businesses fraught by this pandemic. Quite a number of employers made their employees, who couldn’t work remotely, go on compulsory leave (some paid, some unpaid). Is your legal advice ready in this regard; either in favour of the employer or employee?

c. Withdrawal of employment offer

There have been reports of withdrawn employment offer. People that have been given offer letter to come and resume work shortly before the pandemic struck have had their offer withdrawn. You may want to consider how plausible this is. Can the offer be validly withdrawn?

d. Termination

The International Labour Organization (ILO) has warned that the economic fallout from coronavirus disease could cause the loss of up to 25 million jobs in the world. Definitely, people will be suing for wrongful termination! Have you given it a thought whether, given the circumstances, these terminations will amount to wrongful termination or termination for cause? Are there laws that can represent your client’s interest?

2. CONTRACTS

If you have a subsisting contract, or have recently drafted one, you may want to check if your contract will be affected by COVID-19. For instance, whether some clauses have become loss-making or subject to penalties due to delay or non-performance. Particularly, you may want to check the following clauses in your agreement:

a. Force majeure

Many contracts include a force majeure or Act of God clause that allows one or both parties not to perform its obligations under the contract if certain events occur. Does yours specifically include pandemics? or something more general that would encompass a pandemic? Has it become impossible to perform under the contract because of a government order? Or more importantly, was this pandemic foreseeable at the time the contract was made? Do you know what is needed to successfully plead force majeure? The best time to refresh yourself on this issue of law is now.

b. Contingency and extension of time clause

Is there a contingency and extension of time clause in your contract? Is the success of your contract contingent upon a third party’s performance? Is there an agreement on how the parties’ obligations are impacted if that third party fails to perform? Even if there is not a specific extension of time clause, consider whether a reasonable extension of time would make it possible for the parties to perform.

c. Indemnity agreements and limitation of liability

Is there an indemnity clause that requires one party to compensate the other for losses that result from commercial disruptions or a breach? Also, as you are weighing your options, don’t forget to look for clauses that might limit that liability. Will non-performance result in a breach of the contract? What are the consequences for non-performance?

d. Termination

A lot of contracts are for a period certain. If yours is, you may want to consider how the contract’s termination provisions work so that you can determine if you, or the other party, have a right to terminate despite the pandemic.

e. Doctrine of Frustration

Is there room for the doctrine of frustration in your contract? Have you considered whether you, or the other party, has the necessary ingredients to evoke the doctrine?

Having considered all of these, do you need to do damage control by sending out a letter or addendum to the contract to capture the reality on ground? Your proactiveness will go a long way in saving your client/employer from liabilities.

f. Calculation of Case timelines

What will happen to your cases that were already being adjudicated upon before the pandemic caused a pause of judicial processes? Will the time of the pandemic lockdown be factored in or will it be excluded. If it will be excluded, how will it be calculated, from when to when? An example of these are election petition matters that have specific timelines, time to appeal matters, time to file responses. Now is a good time for you to start preparing your legal arguments and begin to understand the laws that will come into operation. Some of which have already been passed.

3. FUNDAMENTAL HUMAN RIGHTS

a. Freedom of movement

We know you’ve been considering this for a while now. Like, the right to move about freely in Nigeria and to reside in any part of Nigeria is a constitutionally protected right under Section 41; but right now, you cannot even go to work! Have you even imagined that there will likely be strings of suits borne out of this infringement? Have you gathered relevant authorities, for and against?

b. Discrimination

Should we talk about the discrimination and stigmatization that comes with being infected with COVID-19? How are you planning to advice your client who has been so discriminated against? Have you refreshed your mind on how it will be proven? Oh…or is it the way agencies are choosing and picking who gets tested and who doesn’t? Have you not considered that too as discrimination? Is your argument ready in that regard?

c. Torture

I’m sure you’ve heard or seen (probably on social media) how citizens have been maltreated and stripped of their dignity by some men of the armed forces. What if you were approached by one of such persons? Are you sure your stance holds water?

Conclusion

So, you see? A boom awaits the legal industry after this pandemic. But laws will be tested, and so will lawyers! Although there is no telling how the courts will deal with this unprecedented situation, only the prepared ones will be strategically positioned for this boom. Do you want to be among the prepared ones?  Then, subscribe to any of the LawPavilion tools. With it, you can effectively do all your legal researches in readiness for the nearest future. And what is more, we are currently running a promo! What a good time to be alive! Call any of the numbers below: 08050298729,  09083540561, 09099127625; Email Us @ customercare@lawpavilion.com or better still click on the image below to join the league of lawyers strategically positioning themselves ahead of the competition.

Stay safe!