as the ash settles, what happens to the pay of stranded
employees?
With the Icelandic volcanic eruption officially being on "pause"
and travel generally back to its normal pattern the scenes of
stranded travellers so ubiquitous a few months ago are starting to
fade from minds. However, with pauses often forming part of a
volcano's eruption pattern the risk of future travel disruption
remains. For employers who may be faced with absences as a result
(or who may still be dealing with the results of the April
disruption) the key issue will be whether or not employees who are
absent from work as a result of the travel chaos should be
paid.
The starting point is that any employee who does not turn up for
work for any reason, even one due to circumstances beyond his or
her control, is not entitled to be paid, unless their contract
states otherwise.
Where employees are stranded while on employer's business, there
is a compelling argument that they should be paid, as they can
demonstrate that they were ready, willing and available for work.
Employers may also feel that they should be given time off in lieu
for non-working days that are lost.
However, for the majority of employees who are unable to return
from personal holidays, there will be no entitlement to pay. This
may be very costly, particularly for those who have made their way
home using alternative transport, and some employers may choose to
exercise discretion and pay them in any event. If not, however, the
question is how to manage the situation.
The most straightforward solution is to ask employees to agree
to take the time off as holiday as an alternative to taking unpaid
leave of absence, which is the alternative. This should be done by
agreement as unless the employment contract provides otherwise,
there are strict rules under the Working Time Regulations 1998 as
to the amount of notice an employer needs to give to an employee to
take holiday. An employer acting after the event will fall foul of
these provisions. Some employers are offering employees the
opportunity to work extra hours (subject to the statutory limits)
to avoid a deduction from pay.
If agreement cannot be reached, and the employer wants to reduce
pay, it should inform the employee in writing, setting out their
non-attendance at work as the reason (despite it not being their
fault). Unless there is a contractual right to be paid in these
circumstances (which would be very unusual) reducing pay to account
for time not at work would not be an unlawful deduction from wages.
However, employees might try to establish an implied contractual
term that they should be paid. For this reason, and to avoid
discrimination claims, employers need to ensure they are acting
consistently between employees and compared with other similar
situations in the past (such as travel disruption due to snow). If
employers intend not to pay employees, but have previously had a
policy of continuing pay, they should seek advice first.
Swine flu, extreme weather conditions and volcanic ash should
all be serving to highlight to employers the need for contingency
plans and policies which are broad enough to cover all unexpected
emergency situations.
