Icelandic volcano eruption - the implications for schools'
staff
As the volcanic eruption in Iceland continues to wreak havoc
with flights, but with most staff and pupils now back at school,
many schools have been asking what happens to the pay of their
staff in these circumstances.
The starting point is that, unless a contract expressly states
otherwise, an employee who does not attend work, even in
circumstances beyond his/her control, is not contractually entitled
to be paid for their period of absence because they have not
performed any work during that period.
Staff who were stranded whilst on the school's business should
continue to be paid either because they are performing their duties
for the school (for example, continuing to supervise pupils on an
overseas trip commenced during the Easter break) or in other
circumstances where they may have been required to travel for the
purposes of the school's business (for example a development
director on an overseas fundraising trip) and should not be
penalised when, but for undertaking this journey, they would have
been undertaking work.
In any other cases, schools may have discretion as to how it
deals with these matters. Where staff were unable to get to work as
a result of personal holidays, some schools will want to exercise
their discretion and continue to pay them. If staff made their way
home using alternative transport, such a gesture will be especially
welcome in the light of press reports that they are unlikely to be
compensated by airlines for those travel costs.
However, schools which are charities should be careful before
making payments in these circumstances and are recommended to seek
specialist employment and charity law advice. Where a charitable
school has no legal obligation to staff to make such payments it
may be necessary to obtain formal clearance from the Charity
Commission on the basis that it is expedient in the interests of
the school to do so. On the other hand, if the school has made
payments to staff in comparable circumstances in the past, there
may be sufficient grounds for the existence of an implied contract
term which legally obliges the school to continue to pay for the
period of absence.
Where a school does not want to make (or, if a charity, cannot
justify) this concession, the most frequent ways in which employers
have exercised their discretion is:
1. by asking staff to agree to take the time off as holiday
(subject to statutory provisions relating to this)
2. by offering employees the opportunity to work extra hours
(subject to the statutory limits) to avoid a deduction from pay
3. by requiring employees to take it as unpaid leave of
absence
Options 1 and 2 are unlikely to be practical for a school's
teaching staff, bearing in mind the contractual arrangements for
the majority of teachers.
Under option 3, if agreement cannot be reached with the member
of staff, and the school 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, there is a risk
that members of staff might try to establish an implied contractual
term that they should be paid.
Schools when exercising their discretion must ensure that they
are acting consistently between employees and that such consistency
takes account of comparable situations in the past, such as the
recent snow disruptions for example. Any school that intends not to
pay its staff, which has previously had a policy of continuing pay
in similar circumstances, should seek specialist employment law
advice first.
Click here for advice to consumers on their
rights to a refund, alternative flights, help and assistance and
compensation for delay in these circumstances.
