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Employment Rights and Volcanic Ash Flight Disruptions – What Happens When the Dust Settles?

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The Employment team at Yorkshire law firm Keeble Hawson look at some of the key questions and answers for employers with stranded employees, in the wake of the travel chaos created by the volcanic ash cloud.

  • Payment of wages? - In broad terms, it is arguable that if an employee can’t get to work, even through no fault of their own, they have no right to pay unless their contract of employment states otherwise. Checking employment contracts and absence management policies must be the first port of call for employers looking to deal with the aftermath of these unprecedented reasons for employee absence.

    Employers may choose to pay stranded employees anyway, despite no legal obligation to do so, or reach some other mutually agreed arrangement – e.g. the employee uses annual leave (but employees can’t be forced to take holiday at short notice) or agrees to make up the time at a later date. Employers should verify if employees have insurance cover covering loss of earnings and stipulate that any (discretionary) pay is an advance of future salary while the employee deals with the insurer.
     
  • Discipline for unauthorised absence? Discipline for unauthorised absence in these circumstances is unlikely to be a sensible course of action. Employers can only require employees to take reasonable steps to find alternative means of getting to work and/or working remotely, but they can insist employees follow company procedures relating to unauthorised absence and/or transport disruption/severe weather in terms of notifying and updating the employer. In these exceptional circumstances, disciplinary action for a failure to make a successful return to work may be unwise, but an employee who fails to keep his employer updated without good reason could find themselves in trouble.
     
  • School closures? If school closures (at short notice) result from staff shortages due to flight restrictions, employees would have the right to unpaid time off to deal with an emergency situation in terms of caring for dependent children.
     
  • Carers/dependants? Employers should bear in mind the possible unfairness of disciplinary action against parent or carer employees who assert their right to unpaid time off to care for dependants stranded abroad (with or without the parent or carer employee) or who have to care for dependants where their spouse or partners are stranded abroad and unable to provide the normal or planned care.
     
  • Consistency is key. Employers are advised to act consistently in their dealings with employees affected by the flight restrictions to limit any risk of claims of unfairness or discrimination. The unprecedented nature of the current disruption perhaps should prompt a sympathetic approach to employees who are prevented from attending work in circumstances beyond their control. Employees whose holiday plans have been disrupted may request to rearrange pre-booked annual leave - the employer’s response should be consistent and reasonable.

Finally, is it time to review existing policies and procedures? Given the recent swine flu problems and adverse weather conditions over the winter months, employers have begun to give serious consideration to review existing absence policies. The impact of geological events in Iceland should be viewed in the same context. Implementing a policy for dealing with different types of absences and applying it equally and consistently throughout the workplace will define in advance the rights and obligations in such circumstances. This would help in avoiding future disputes over leave or pay that could result in expensive employment tribunal claims.For further information please contact shaunduffy@keeblehawson.co.uk or paulgrindley@keeblehawson.co.uk.

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