Although some domestic flights are set to go from the north of the country today, latest news reports suggest that flights into the UK may not resume normality until the end of this week at the earliest. With 150,000 Britons estimated to be stuck abroad the eruption of the Icelandic volcano is going to impact employers throughout the UK as employees who are overseas report that they will not attend work this week.
We put the issues the eruption is causing for employers, to the legal experts.
Simon Fenton, partner and head of employment, Thomas Eggar LLP
Technically, not returning from holiday would be unauthorised absence. Under most contracts of employment this is classed as misconduct. Although it would be possible to start a disciplinary procedure for this, the most likely result is that you would end up in tribunal. But an Employment Tribunal would almost certainly find that disciplining someone as a result of a national emergency was not a reasonable response to their absence.
Could you force employees to take the time off as part of their annual leave entitlement? The short answer is 'no'. You can't force an employee to take holiday unless you give them twice as many days notice as the holiday you want them to take - so, if you want them to take three days' holiday, you would need to give them six days' notice. Clearly this will not be a practical option when no one knows how long the flight ban will last. (Although it may be something to consider in the future if we are given more concrete timescales.)
One of the teaching unions has said today that failing to pay teachers who are not able to get to work would be an unlawful deduction from wages. This may be true for the members of that union if they have collective agreements in place, but it is not true for those not protected by such contractual or collective agreements.
So, in practical terms, what can you do? If there are no relevant contractual or collective agreements in place, there are a few options for employers:
1. Treat the extra time off as unpaid leave. You have no obligation to pay employees if they are not at work unless they are sick or on holiday.
2. Assuming the employee still has annual leave left to use, offer them the opportunity to take the time as holiday. There is no need to give notice if the holiday is taken by agreement. This is the approach that many employers took during the snowy period earlier this year.
3. If you operate a flexible working or shift system, offer the employee the option to make up the time at a later stage.
4. If possible, allow the employee to work from where they are stranded. This may be the best option if they are abroad as a result of a business trip. It would be difficult to ask an employee to take holiday if they have become stranded as a result of work.
5. There is nothing to stop you offering the employee the options above and letting them choose which one to take. Being as flexible as possible in this situation - that no one can control - is likely to be seen as the most reasonable response.
In light of the recent case law on sick leave and holiday, if some of your employees are mysteriously struck down by illness for all the days they were stranded abroad, bear in mind that sick pay is payable even during holidays!
Fiona Morrison, solicitor in the employment law team at Dundas & Wilson
1. What options are available to employers in these unusual circumstances?
2. Where employees have been abroad on business (as opposed to holiday) they may have the facilities to work remotely (i.e. laptop, Blackberry etc).
3. If an employee is overseas on business and cannot work remotely then they are clearly not on holiday and a continued absence should not be treated as such.
4. If working remotely isn't feasible, an employer will need to consider how to treat the days of inevitable absence: holiday, paid absence or unpaid absence.
5. Obviously an employer could look to have its employees take the days off as part of their annual leave entitlement. There are technical issues if an employer insists that this is the case, but if the alternative is unpaid leave then employees may well simply accept the requirement to take it as holiday.
6. Alternatively an employer could continue to pay the employees but make it clear that they will be expected to make up the time at a later date.
7. If the employee has reached the limit of their leave entitlement, the employer could decide that the days off will be treated as unpaid leave. Whilst there is always the risk that employees could pursue unlawful deductions from wages claims in respect of the salary they are not paid for the days they have off, the risk is low.
8. The benefits to staff morale and productivity in the long run of paying staff in these circumstances is likely to outweigh the financial burden to the business of paying employees who cannot attend work this week.
It is unlikely that employers will have a policy in place dealing with this kind of situation. It will therefore be important that: A decision regarding the approach to be adopted is made quickly;
- Employers should audit their staff to see how many employees are affected. For example all line managers should be notifying HR if their staff are abroad and unlikely to return. This enables HR to assess the scale of the problem and also analyse whether support is required;
- The chosen approach is communicated to all employees, particularly those who have found themselves stuck abroad;
- Employees in the same circumstances are treated consistently;
- Employees are requested to keep in contact with their line manager about when they expect to be back at work;
- Employees are reminded that they are expected to make reasonable efforts to get into work i.e. for those who are in continental Europe it may be possible to travel back to the UK by ferry or Eurostar.