The effect of volcanic ash on the workplace
The problems caused by the volcanic ash and the weather has given rise to major travel disruption. With an estimated 15,000 people stranded abroad and unable to return to work, many UK employers are facing a number of difficult employment questions.
Do employers have to pay employees who are unable to return to work from holiday?
Employees are required to attend work unless there is a valid reason for not attending e.g. sickness. Contractually, employees are not entitled to be paid if they fail to attend work and this is deemed an unauthorised period of absence.
In the circumstances, employers could treat those employees who have failed to return to work at the end of a holiday as taking an unauthorised period of absence and argue that they are not entitled to be paid. However, if the employer took such action, it would be exposing itself to the risk of litigation.
Unless there is a provision in the employee’s contract of employment authorising the employer to make such deductions from salary or an express agreement with the employee in question, the employee could make a claim for ‘unlawful deduction from wages’.
Depending on the circumstances, it may be reasonable for employers to suggest to employees that although they will be paid throughout the period of absence, they will be asked to make up the time when they return to work.
Employers are advised to insist that their employees check whether loss of earnings is covered under the employee’s travel insurance policy. If this is the case, employees may be barred from bringing a compensation claim if they have already been paid by their employer. Employers may therefore wish to treat any payments made to employees as an advance of future salary whilst the employee deals with his insurer.
Can an employer force employees to extend their holidays if they are unable to return to work?
Unless Employees’ contracts of employment reserve a right to dictate when holiday is taken, this can only be done in accordance with notice requirements specified by the Working Time Regulations. In the circumstances, Employers would be wise to try to agree an enforced period of holiday with the Employees if they wish to pursue this option.
Can an employer discipline an employee who is unable to return to work?
In such exceptional circumstances, an employer would be unwise to take disciplinary action against an employee for failure to return to work.
However, an employee who makes no attempt to keep his employer updated regarding travel plans may be subject to some form of action by the employer.
What steps are affected employees obliged to take?
Employers can only expect their employees to take reasonable steps to find alternative means of returning to work. Given the limited and expensive travel options currently available to stranded individuals, it would be unreasonable of employers to force employees to do so.
Unless approval has been given for the employee to extend their holiday, employers can only expect employees to take reasonable steps to work remotely. However, employers can insist that affected employees adhere to any contact and notification procedures as set out in travel disruption or sever weather policies. In these circumstances, employers may suggest that the cost of them doing so will be reimbursed under the terms of the employer’s normal expenses policy.
Can an employer refuse to allow employees to change their holiday plans due to the current problems with air travel?
Generally, contracts of employment do not provide for such a situation. If an employer has approved an employee’s holiday and the employee subsequently requests that planned holiday is cancelled or changed, the employer should exercise its discretion in a fair and reasonable manner.
How should employers deal with employees who have travelled abroad on business?
If employees have been sent abroad on business, employers should not withhold payment of the employees’ salary, or to force employees to take those days as unpaid leave or as part of their holiday entitlement (unless the employee agrees to do so), as stated above.
Employers who have been required to travel abroad on business may seek to claim any extra costs incurred in getting home from the employer. In such circumstances, employers are advised to look at the wording of their expenses policy. Most expenses policies will state that any expenditure should be authorised in advance and should also be reasonable in nature. If this is not expressly stated in the employer’s expenses policy, the employer should argue that this is an implied term of the policy.
In these exceptional circumstances, each case will have to be assessed on its own merits. For example, if an employer puts pressure on an employee to use all means available to return to work because of urgent work commitments, it is likely that the employer will be liable to pay for most/all travel expenses.
In any event, if employees have been required to travel abroad on business, the employer will have an obligation to ensure the welfare of the affected employees e.g. assisting with arranging appropriate accommodation and finding alternative transport home.
Whatever decision employers make with regard to affected employees, they should treat everyone consistently, to avoid suggestions of unfairness or discrimination. Given this unique set of circumstances, employers are advised to work co-operatively with employees to put mutually acceptable arrangements in place.
