27 March 2020 - Article
From the heavy snow in January to the Icelandic volcanic ash cloud, it seems that 2010 is the year to expect the unexpected.
Natural disasters, terrorism and adverse weather conditions have left both employers and employees considering their rights and obligations in these situations. The most common concerns relate to employees who cannot attend work, owing to the circumstances or knock-on effects, such as disrupted childcare arrangements
So, what is the position and what measures should employers take?
The situation will vary according to the employer’s employment documentation and the individual employee.
The starting point is to check the employment contracts and policies/procedures in place. These may cover unforeseen absences – for example, requiring employees to take unpaid leave on days they are unable to attend owing to unforeseen circumstances, or stipulating that pay is dependent upon work. Policies may also be in place in relation to time off to care for dependants.
Where there are no relevant contractual provisions or policies, employers are generally not obliged to pay employees for this sort of unplanned leave. They can compel employees to take holiday (which will be paid) but, because they must give notice of at least twice the length of the leave itself, this is of little use in these situations.
However the employer proceeds, it must act consistently and fairly. In particular, they may be at risk of discrimination against women if employers take decisions that have an adverse effect on them (eg, a requirement that mothers take unpaid leave to cover childcare emergencies but allowing staff paid leave for other non-family related emergencies). An employer must be able to objectively justify all its decisions.
If an employee is stranded on business, the employer should pay them as normal and assist them as much as possible by funding accommodation and alternative travel arrangements. Making deductions from pay or leave in such situations could lead to claims of constructive dismissal or unlawful deductions from wages.
It is sensible to ensure that employees do not take advantage of travel chaos. Employees should be required to report to the employer regularly and take all reasonable steps to return. If an employee does not take such steps, disciplinary action could be taken.
Employers should review existing contracts and policies now to ensure they provide for unforeseeable absences. This will give certainty and reduce the risk of complaints.
When considering whether to require employees to take annual leave or have the absence treated as unpaid leave, it is good practice for employers to bear in mind their business needs and consider alternatives. Could a stranded employee work from where they are, or from a nearby office? Could the employee make up the hours lost on their return (provided this does not breach the Working Time Regulations 1998)?
It may even be sensible to pay the employee for some or all of the missed time to maintain good relations and loyalty. The TUC General Secretary urged bosses to be sympathetic in their approach to the volcanic ash situation, adding: “docking wages is an extreme reaction”.
Employers may wish to assist stranded employees in making return travel plans in an effort to get them back to work as soon as possible. They should, however, remember their health and safety obligations and make sure they do not place employees in potentially dangerous situations.
- Check your employment contracts and policies
- Act consistently, taking into account individual circumstances (eg, childcare issues; employees on business)
- Consider practical alternatives to requiring employees to take annual or unpaid leave
Employees faced with unexpected costs might, upon return to work, request salary advances to cover mortgage payments and other major outgoings. While there is no obligation for employers to accede to such requests, if money is advanced, employers should be aware that this may set a precedent. Such arrangements should be properly entered into and documented.
This article was first published in Caterer and Hotelkeeper magazine