Unauthorised absences – is there a right to receive pay?

At the time of writing this article, England is gripped by the unchecked rioting taking place over much of London, as well as Birmingham and Manchester.  Most employers are showing appropriate concern for the welfare of staff and have adopted a reasonable approach to ensure that safety is the priority.  However, like extreme weather or travel disruptions resulting from natural disasters such as the Icelandic volcanic eruptions, some employees may say that they are unable to travel safely at this time.  Though the underlying circumstances differ, the principal legal question remains the same; is an employee entitled to be paid in respect of any period where they are unable to attend work due to circumstances beyond their control?

Before we tackle this question, it must be clearly said that employers and employees should always strive to find a reasonable alternative before resorting to a strict interpretation.  Where work can be carried out at home or hours can be made up at another time, this will generally cause less annoyance for both parties.  Another reasonable alternative would be to treat the day(s) as annual leave so that the employee is still paid during the absence.

However, it must also be acknowledged that these measures are not always feasible and/or palatable.  Some employees, for example factory workers, perform work which must be carried out at a specific location and despite best intentions, the offer to treat any absence as leave may not be accepted by an employee who resents having to use up annual leave in unforeseen circumstances through no fault of their own.

So if you’ve tried all the alternatives and it comes down to a question of strict legal entitlements…

Two legal schools of thought exist:

The first view (shared by the author) is that, absent any relevant provision in the contract, there is no implied right to be paid for any period when an employee is unable to attend work.  Going back to 1940 when the Court of Appeal delivered a decision in O'Grady v M. Saper, Limited, it was held that there is no implied right to receive wages during a period of absence and that in every case it depends entirely on the terms of the contract which will often need to be ascertained by reference to the facts.  The ‘master/servant’ relationship that exists at the heart of employment law requires the employee to present himself fit and ready to provide his skills and services and at that point the onus switches to the employer to pay the employee.

The opposing view is that a salaried employee who is not paid for a period of absence when he was fit and ready to provide his skills and services and was only prevented from working by the  unforeseen circumstance will be entitled to commence an unlawful deduction from wages claim. This is subject to there being no provision in the contract which allows the employer to withhold pay in unforeseen circumstances,

The overarching advice in these situations is to adopt a reasonable and flexible approach.  Safety of staff must be considered at all times and it would be sensible to retain perspective in relation to the cost of the absence versus the damage to morale and resentment which may be caused by refusing to pay an employee who cannot attend due to unforeseen circumstances.

This article was written by partner Tina Wisener