The air travel chaos caused by the eruption of a volcano in Iceland caused, according to ABTA, approximately 150,000 Brits to be stranded abroad. Meaning that many of them were unable to attend work on the dates they were due to do so. Even ten days after the UK airports reopened, the Foreign Office has said there are still "large numbers" of Britons stuck abroad.
Employers have faced disruption as a result of these absences and have been asking how to deal with this situation. Should they pay staff who could not attend work because they could not return to the UK? Also, should employees be required to take the days they were unable to attend work as holiday?
The Federation of Small Businesses warned that staff who are not paid because they cannot attend work could make a claim against their employer in an employment tribunal. This is unless their employer had a clearly agreed policy on authorised absence. The General Secretary of the largest teachers' union, the NASUWT also said on behalf of its members that employers are vulnerable to a legal challenge for 'unlawful deduction of salary' if they seek to penalise teachers, who were unable to return to work, in this way. However, these comments appear to be unnecessary scaremongering for employers.
In fact, if an employee fails to attend work their employer is entitled to dock their pay. There is no
automatic right to be paid if an employee does not turn up for work, even if they are prevented by unavoidable travel problems. Some employees may be able to get around the problem by working remotely, but an individual has no right to be paid unless they actually carry out their work. In reality, however, if employees are unable to attend work through no fault of their own (for example, as a result of a natural disaster), many employers may wish to show some leniency, not least because of the potential harm to staff morale.
When it comes to the issue of annual holiday entitlement, it seems that some employers have asked their affected staff to take the time they were unable to attend work as holiday. There is nothing to stop employers asking their workers to take their holiday at a specific time. However, in the absence of a relevant agreement there are in fact specific notice requirements to make workers take leave upon an employer's request. Staff cannot generally be forced to take holiday without notice of at least twice the length of the period of leave they are ordered to take. Although, some workers may prefer to have their period of absence treated as holiday to ensure payment while they are not at work.
With the challenges of this recent event and the severe weather this year, it is advisable for employers to consider in advance how they will deal with staffing difficulties in disruptive circumstances and have a policy on this.
If you would like to discuss any of the issues raised please contact Laura McFadyen from Stephens Scown's Employment Law team in Exeter on 01392 210700.
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