Settling the Volcanic Ash Fallout - Stranded Workers

As yet more volcanic ash poses problems for thousands of employees wishing to go abroad on annual leave, many workers remain stranded, are unable to return home and cannot return to work. Increasingly, it is becoming necessary for businesses and employment law solicitors to tackle this unique situation which will undoubtedly not be covered within contracts of employment and staff handbooks.

Top 5 Questions – The Legal Position

1. Can employers stop paying stranded staff?
   When an employee fails to attend work (fails to return from holiday), this can be deemed as unauthorised absence. If an employee fails to turn up for work there is no obligation upon the employer to pay them. However, some employers are using their discretion in this situation and are paying their stranded staff.


2. Can employers treat the absence as a disciplinary matter?
   Whilst a failure to attend the workplace would strictly speaking be a disciplinary matter, in a situation such as this involving problems beyond an employee's control, it would most probably be unfair for an employer to treat any such absence as a disciplinary matter and making a stranded employee the subject of disciplinary proceedings, especially if the employee has attempted to take all reasonable steps to return to the UK. 

   However, an employer might wish to consider taking action against employees who have made no contact with them in order to keep them abreast of the situation.

3. Can employers force employees to take the time off as annual leave?
   In the absence of either a clause within an employee's contract of employment, or the employee's consent, employers cannot require employees to take more annual leave. An employer must give an employee twice as many days notice as the number of days they require the employee to take. However, employers still might want to offer this as an option to employees.


4. Can employers ask stranded employees to work from overseas?
   Again, this is dependent upon the employee's contract of employment and whether it is realistic and practical for the employee to undertake their work whilst away. If it would be possible to do so, the employer could request that this is undertaken.

   If an employee does perform their duties from abroad, care must be taken before making any deductions from pay. In the event that the employee chooses not to work in this situation, it may well be necessary to consider disciplinary action; treat their time off as unpaid; or require them to take extended annual leave. If an employer does require an employee to maintain regular contact when working abroad, they should be prepared to suggest that any costs incurred in so doing can be reimbursed as expenses.

5. Can an employer ask other members of staff to undertake the stranded workers' work?
   This will depend upon the terms of the contracts of employment. It will also be dependent upon whether other members of staff can realistically perform the role of the stranded worker. Every employer has an obligation to ensure the health and safety of all employees and therefore it is essential that any requests are not contrary to the Working Time Regulations 1998.

What can be done?

1. Check your contracts of employment, handbooks and policies! Update your policies and reporting duties in periods of absence and expand upon the situations concerning disruptions to transport and getting to work so as to include all forms of natural disasters, strikes and attacks and devise a long term continuity plan to deal with similar issues in the future.


2. Check whether the stranded employee has untaken annual leave and offer them the option of taking additional paid leave. If employees do not have any remaining holiday entitlement, employers could agree with them to treat the extra time off as unpaid leave.


3. Require employees to make reasonable efforts in getting to work and to provide regular updates and status reports as to their situation as they would be expected to do in any other period of absence.


4. Consider whether there are any flexible arrangements that can be agreed, such as the employee agreeing to make up the time or allow staff to swap shifts.


5. Consider whether work can be undertaken using video conference and remote access.

WARNING!

1. Deal consistently to avoid risk of discrimination claims.


2. If an employee falls ill whilst on holiday, they are entitled to sick pay.


3. Failure to pay members of a union who are protected by collective agreements may give rise to claims for unlawful deductions from wages.


4. If an employee is stranded abroad whilst over there on business, it is more difficult to ask them to take extra holiday as they are not abroad on holiday in the first place. It might be preferable to see if they can work from abroad in these circumstances.


5. Care must be taken not to damage employer/employee relations – employers have a duty to maintain trust and confidence. Failure to do so, could result in a breach of duty, entitling the employee to resign and claim constructive dismissal.

If you feel you need the advice of an experienced employment law solicitor, please contact Nicholas Evans by email at nicholas.evans@healys.com