10 April 2020 - Article
The air-travel paralysis resulting from the eruption of a volcano in Iceland has, according to ABTA, left approximately 150,000 Britons stranded abroad, many of them unable to return to work on the dates they were due to do so.
We consider the issues and challenges faced by employers whose employees are stranded overseas and set out some practical advice.
The questions employers are asking most frequently at present concern how to deal with employees who are unable to return to the UK. Should their extended absences be paid? Should employees be required to take days spent ‘stranded’ as annual leave?
At the same time, employers are facing knock-on effects – such as school closures requiring employees unexpectedly to take time off to deal with childcare responsibilities.
So what should employers do when faced with such issues?
In a situation like this employers should first look at their contracts of employment, company handbooks and policies and procedures.
One impact of the terrorist threat and other challenges of recent times has been the institution of emergency plans and policies and procedures covering unforeseen absences. It may be that those policies contain the answers to many of the questions arising in this situation. They may, for example require employees to take unpaid leave on days that they are unable to attend work due to the impact of natural disasters, terrorism or adverse weather conditions.
There may also be policies and procedures covering childcare emergencies and other relevant issues.
Employers should, of course, be careful to ensure that any current provisions are not discriminatory or otherwise unlawful or unfair.
In the absence of existing provisions…
Where current provisions do not cover this situation there is no ‘one size fits all’ answer.
When considering whether employers can require employees to take unforeseen and ‘unwanted’ leave as annual or unpaid leave employers should consider their company’s business needs and structure and make decisions based on business logic which can be justified if challenged.
Decisions will need to take account of the nature of an affected employee’s work and current location. For example, some employees may be able to carry out their work from their current location, perhaps from a local branch/office or using blackberries, laptops or other devices. Others may have no access to technology or might only be able to carry out their work from their usual location.
Employers will also need to consider:
- the uncertain duration of the disruption;
- the extent to which temporary cover is required and its cost; and
- the potential for a similar scenario to recur.
It is also important for employers to bear in mind the need to avoid discriminating against employees, particularly when making decisions about employees with childcare related issues arising from the unexpected closure of schools and nurseries. In these cases there may be a risk of indirect discrimination against women if employers take business decisions that have an adverse impact on them (such as a requirement to use holiday or take unpaid leave to cover childcare emergencies) and they cannot objectively justify their decisions. This could arise if the employer normally took a generous or lenient approach to unscheduled applications for leave for other purposes.
On the other hand, if stranded employees were travelling for work purposes, employers should consider how to assist them as much as possible – such as making and funding accommodation and travel arrangements. Making deductions from pay and/or leave allowance would not be advisable in such situations and could lead to claims of constructive dismissal or unlawful deductions from wages.
Cash flow crisis
Employees faced with unexpected additional travel and accommodation costs may return and request salary advances to cover mortgage payments and other major outgoings. Whilst there is no obligation for employers to accede to such requests, if money is advanced employers should be aware that their actions may set a precedent and such arrangements should be properly entered into and documented. Additionally, repayment through temporary measures such as putting employees on reduced pay could be used to mitigate hardship in the short term.
On a practical level, it may be sensible to assist stranded employees in making return travel plans in an effort to get them back to work as soon as possible. Employers should, however, remember their health and safety obligations and make sure that they do not place employees in potentially dangerous situations. Employers would also be well advised to remain updated about health information and warnings relating to falling ash and, if necessary, take steps to protect affected employees.
Finally, for employers who do not yet have contingency plans in place, this latest situation should perhaps serve as a reminder to plan ahead.