Volcano update: Employers not obliged to pay stranded staff, say lawyers

Employers are under no legal obligation to pay staff who are stranded because of the travel chaos caused by the volcanic eruption in Iceland, lawyers have confirmed.

Travel industry body Abta has estimated that about 150,000 UK workers are stranded because of the disruption.

The Federation of Small Businesses today warned that staff whose pay is docked because they cannot get to work could take their employers to tribunal unless the organisation had a clearly agreed policy on authorised absence.

But Guy Lamb, partner at law firm DLA Piper, played down these fears. “It’s implicit in the employment relationship that you turn up to work,” he told Personnel Today. “It is helpful to have policies on this, but just because it’s not written down, it doesn’t mean you’re in trouble.”

Stephen Simpson, employment law editor at XpertHR, agreed. “As a general rule, employees who are absent from work are not automatically entitled to be paid,” he said. “Having said this, if employees are unable to get to work through no fault of their own (for example, because of a natural disaster), employers may wish to show some leniency, not least because of the potential harm to staff morale.”

Jim Lister, head of employment at law firm Pannone, added: “There is no case law on this, but unless the contract of employment provides for paid time off in the event of extreme unforeseen circumstance’ (and in our experience that is extremely rare), the answer is probably not.

Legal Q&A

What happens if an employee doesn’t turn up for work because of the travel problems? Will they get paid? Is it a disciplinary offence?

There’s no right to be paid if an employee doesn’t turn up for work, even if prevented by unavoidable travel problems. Some employers will use their discretion and not deduct pay if employees have made attempts to get to work, and of course these days many employees can work remotely, but the employee has no right to be paid unless they actually work.

Technically, failure to turn up to work is a disciplinary offence but in cases of international travel problems beyond the control of employees it would probably be unfair for the employer to take disciplinary action if the employee has either attempted to get to get back to the UK and taken all reasonable steps to try and do so.

Can managers force employees to cover work for a colleague who can’t get in because of the travel problems?

It depends on the contract of employment and whether it is reasonable for the employer to ask the employee to do the colleague’s work – for example, have they been trained to do it? Employers also need to bear in mind their health and safety responsibilities and working time regulations in relation to rest breaks and maximum working time when asking employees to cover for colleagues.

Can employees be forced to work from overseas?

Again, this depends on the contract and whether it is reasonable. However, an employee who can reasonably work while stuck overseas and chooses not to would usually either not be paid or would be required to take the time as annual leave, and it could be a disciplinary offence.

Guy Lamb, partner, DLA Piper

“Generally, an employer only has the duty to pay an employee who is willing and able to do work; if an employee fails to turn up for work the employer is under no legal obligation to pay them.”

TUC general secretary Brendan Barber said it would be “unfair” for employers to penalise staff because of events outside their control.

“We would ask bosses to be sympathetic to the plight of their employees and be flexible in their approach to resolving the situation,” he said. “Docking wages is an extreme reaction.”

Unions have already warned against reducing the pay of teachers who struggle to get to work.

It emerged today that workers in the airline industry were being asked if they could take holiday while UK airspace is closed. Simpson said there was nothing to stop employers asking if employees would like to take extra holiday if they are unable to get to work, but added that, in the absence of a relevant agreement, there are specific notice requirements to make workers take leave on particular dates.

The disruption highlights the need for employers to have policies on disruptions to transport and wider disaster contingency plans, according to Simpson.

“It’s to be hoped that most employers have these in place, given that in recent years the UK has faced severe weather, the risk of public transport strikes, flu pandemics and terrorist attacks,” he said. “If they don’t, they should introduce them now, but make their policies broad enough to cover any eventuality.”

The flight restrictions will remain in place until at least 01:00 tomorrow (20 April). Test flights by British Airways and other airlines have been completed without any problems, leading to concerns that the flight ban is an over-reaction by UK authorities.

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