Spotlight on Service
Volcanic ash and stranded staff – your questions answered
The volcanic explosion in Iceland resulting in the closure of UK
and much of European airspace for several days is unprecedented. To
make things worse, it comes at the end of the Easter holidays, and
many people taking an Easter break from work have found themselves
stranded abroad and unable to return to work.
Even following the recent relaxation of flight restrictions,
many employers will be faced with staff stranded abroad – either on
holiday or on business; supplies drying up and the prospect of more
disruption to come if there is increased volcanic activity.
Employers are facing problems they have not encountered before,
and because no two situations are identical, our Employment Law
Team is here to help with specific, bespoke, advice 24/7 if and
when you need us.
Here, our employment law experts set out answers to the most
often-asked questions employers have.
Q. My employee has been on holiday and now contacted us
to say that she is stranded at an airport overseas until further
notice.
Do we need to pay her?
A. No. There is not normally any contractual obligation to pay
an employee in respect of work when they do not present themselves
as available to perform, despite the current disruption to air
travel across Europe being unforeseeable and outside their
control.
However, some employers may choose to continue to pay an
employee as normal to cover some or all of this exceptional period
or even have a contingency policy in place to help mitigate the
effects (for example, a remote working option). Otherwise the
options are either for the employee to use some of their normal
annual leave entitlement or take the time unpaid.
Q. How should this time off be
treated?
A. If the time is paid for by the employer, the employer should
clearly state the basis on which this is done, in advance wherever
possible. For example, is it extraordinary paid time off being
granted at Company discretion or has the employee agreed to extend
his or her annual leave period? If it is unpaid then it would be
best to agree with the employee to treat the time as authorised
unpaid leave for so long as the employee is genuinely stranded with
no reasonable prospect of returning home.
Q. What if the employee asks to take the time off as
paid holiday?
A. Employees who are unable to get into work might ask their
employers to take the absence as paid holiday from their annual
holiday entitlement. Although there is no legal entitlement
for an employee to do this, an employer might allow it as long as
the employee has sufficient annual holiday entitlement
remaining.
Q. I understand the problems aren't the employee's
fault, but the member of staff really can't tell me when he will be
back at work – can I dismiss him or her?
A. Although failure to show up for work is a technical breach of
the employee's contract of employment, any decision to dismiss has
to be "fair". In the current circumstances, a decision to
dismiss on these grounds is likely to be seen as unfair.
Q. With key staff absent, I really need to get someone
in to cover the work. Can I do this?
A. Yes. You could try hiring a temp through an employment agency
or take someone on yourself on a temporary basis. If you decide to
take someone on yourself, remember that even temporary staff have
employment rights, including the right to notice of termination of
employment and anti-discrimination laws also apply. We suggest you
take advice from our Employment Law team before committing yourself
to recruiting temporary staff.
Q. My business relies on airfreight and with the flight
ban there is a real shortage of work – I haven't got enough work
for all my staff to do. Can I do anything to reduce
costs?
A. In the short term, it might be possible to lay staff off
temporarily, but this would depend on whether there is anything in
the employees' contracts of employment to permit this. The best
advice is to contact the Mentor Employment Team to explore your
options before you take any action.
Q. A member of my staff is stranded in Europe on a
business trip. We normally reimburse staff expenses at the end of
the month but I am concerned she will pay several thousand pounds
for a taxi and simply expect to claim it back. Is there anything I
can do?
A. As an employer, you are legally obliged to reimburse
employees' reasonable expenses in carrying out business trips. You
might also have a business expenses policy setting out further
restrictions.
However, the current circumstances are very unusual and are
unlikely to be specifically covered in any policy. In these
circumstances, what would not normally be a reasonable expense
might be seen as reasonable if it is the only practicable option to
get her home. You should certainly keep in contact with your
employee and insist that you approve in advance any costs she
incurs.
Q. An employee has returned having been marooned in
Spain and is asking for an advance of wages to help pay for the
costs she has incurred in getting home. I'd like to help out but
are there any risks?
A. There is nothing to prevent you paying an employee an advance
of wages, but there is no legal obligation on you to do so. If you
do pay an advance, make sure it is clear what you are doing and
that it is properly processed through the payroll. Be aware that if
the employee leaves employment before she has had the opportunity
of "earning" the wages you have advanced, there may be little
realistic prospect of you getting the money back.
Q. I have a member of staff who is employed as a
travelling representative. Given that he can't realistically travel
until the flight ban is lifted, can I refuse to pay
him?
A. As an employer, you have a legal duty to provide an employee
with work, and if you are unable to do – even though it's not our
fault – you cannot blame the employee.
In the short term, unless there is anything in the contract of
employment which allows you to lay the employee off, you have a
duty to pay the employee even if you can't provide him with work.
Also, although it might be more useful to have the employee doing
other duties rather than nothing, take care and take advice before
asking the employee to do things he would not normally do, as this
might also be seen as an unreasonable breach of his contract of
employment.
Q. My employee is unable to attend work because she
cannot find childcare for her toddler – she says her mother, who
normally looks after the toddler, is stranded abroad. What are my
legal obligations?
A. All employees have the right to take reasonable unpaid time
off to deal with family emergencies – called "time off for
dependants" – and that would apply in this case.
Where an employee's childcare arrangements break down for any
reason, the employee is allowed a reasonable amount of unpaid time
off to resolve the situation. It is impossible to say how long is
"reasonable" and each case will depend on its circumstances. The
Mentor Employment Law team can help if you are asked to deal with
such a request.
Q. We have a catering franchise at an airport. What can
we do if we don't have enough work for our employees?
A. Employees have the right to be paid for their contractual
hours of work when they come to work and are fit and available for
work.
If you do not have enough work for them, you could first look
for any flexibility within their contracts (for example, you might
be able, under their contract, to vary their hours of work, shift
times and/or rest days) which may offset the impact on the
business. You should also consider exhausting any other duties
which you feel you could reasonably instruct them to perform on a
temporary basis in order to supplement their working hours (for
example stock-taking or cleaning).
Otherwise you would need to have provision for short-time
working or lay-off in their employment contracts to have the option
to legally reduce their pay without specific agreement from the
individual employees concerned.
Please note that, for up to five of any normal days of work on
which staff are not offered any work at all, you must pay a
statutory minimum "guarantee payment" (currently £21.20 per day).
It is also best to apply a consistent policy to all staff - i.e. to
distribute the remaining work as fairly as possible.
Another possible option is to agree that they use annual leave
over this time, where the employee has some annual leave remaining.
However if the employee does not wish to do this then it can
normally only be enforced by serving notice on the employee which
is double the length of the annual leave you wish the employee to
take.