Fallout from volcanic ash creating havoc for employers

During the recent travel chaos caused by the Icelandic volcano many people were unable to return to the UK from their Easter holidays or business trips. Many employers found themselves caught between a rock and a hard place, just like their stranded employees.  So what options were open to them?

• Authorise the absence - however that could be at some cost to their business and could create a dangerous precedent.  If such absence is to be authorised, employers would be wise to set a limit on how long it is for.
• Insist that employees take the time as annual leave.  However, employers must first check their policies to see if they are able to dictate when an employee takes holiday.  If not, then they should try and come to an agreement with the employees concerned.
• Specify that it is taken as unpaid leave. There is no automatic right to payment unless the contract of employment provides for this.  This is unlikely in the majority of cases and there will be many employers looking at their absence policy in light of these events.  

The situation should be treated differently if employees were abroad on business, as opposed to being on holiday.  In these circumstances it would be unreasonable for there to be any adverse impact on the employee.  Potential claims from an affected employee could include unlawful deduction from wages, breach of contract or even constructive dismissal.A sensible approach therefore might be for employers to take the middle ground, perhaps by suggesting that, where employees have made reasonable efforts to find an alternative way to return home and to work, then that absence will be authorised up to a point.  Employers may even be able to assist in this exercise.  Where employees have not made any obvious efforts then the period of unauthorised leave could be unpaid.What is the situation where employees are ready and willing to work but there is no work?  For example, in this case, workers connected with the airline industry.  If an employer cannot provide work because of unforeseen circumstances, they still have to pay the employee because they are ready and able to work, unless there is an agreement to the contrary.  If an employer in this situation refused to pay, the employee could pursue an unlawful deduction of wages claim in the Employment Tribunal.  The alternative is to lay off workers or even consider redundancy, but the disruption may only last for a short period, and such measures do seem extreme.Any employees who find themselves stranded abroad should make sure that they contact their employer as soon as possible and should offer to do as much work as they realistically can, particularly as many people are able to log in or work remotely.  It would also be sensible to keep a record of the efforts made to find alternative routes home where this is realistic.As with any unforeseen circumstances such as these a degree of flexibility and common sense must be required on both sides if employers and their employees are to limit the fallout.

Tina Wisener. Partner