Quickpoints
Volcanic 'Holidays'
20th April 2010
The grounding of all aircraft within Europe has again raised the question for employers as to whether they have to pay employees who do not turn up for work. Similar considerations applied during the winter snow storms.
There is one important difference between the winter snow storms and employees being stranded in foreign countries. Depending on the job concerned many employees are able to carry out productive work at home, but it is unlikely they will be able to do so abroad.
On a simple interpretation of the position, employees work and in return for working they receive pay. Consequently, on the face of it if they do not attend work (unless it is due to sickness or paid holiday) one would assume they are not entitled to be paid. The law is somewhat more complex than this and focuses on whether wages are 'properly payable'. For example, provided an employee is 'willing and able' to work, then subject to anything stated in their contract of employment they are entitled to receive pay. For example, if an employee is signed backed to work following ill health but you ask them to remain at home pending obtaining your own medical report upon that employee, then you would be obliged to pay the employee because he or she was willing and able to work but you asked them to remain at home.
Should you have any staff who have been unable to return to work, then the first thing you need to do is check the contractual position as the Employment Rights Act 1996 prohibits deductions from wages which are properly payable unless certain specified conditions are met which includes a written agreement prior to the event occurring. So do check your contracts and Handbooks.
In the absence of such a specific agreement as stated above you are not entitled to deduct wages if the employee is willing and able to work. Doubtless, all employees who are effected are willing to work but are they able to work? What does 'Willing and able to work' mean? For example, if reasonable steps might have been taken by the employee to return home but the employee did not take those steps, was their inability to work beyond their control?
So what should you do:-
1. Check the relevant contracts and Handbooks to find out whether you have the right to withhold payment for the period of absence.
2. Even if you do, you will doubtless wish to speak to the employee concerned to find out exactly what had occurred. Were they willing and able to work? What efforts did they make to try and get home? For example, someone who is in Thailand is going to have significantly greater difficulty than someone who is in for example Ireland who might catch a ferry and train.
3. Consider whether you can request the employee concerned either to take the time off as paid holiday or unpaid leave?
We anticipate that many employers will take no action in relation to employees who have been unable to return to work following the end of the Easter holiday. However, whilst those employees will have had difficulties of their own in returning home, of course their colleagues will doubtless have had to take on extra work whilst they have been away. Indeed, depending on the amount of time away, it might be necessary for employers to hire agency staff or supply teachers.
Should your Staff Handbook not address these issues then consider revising the Handbook. As some people warn that we are likely to continue to have extremes of weather, the possibility of for example, further snow storms preventing people reaching work, are likely to reoccur and the same issues will have to be addressed.
Should you require any specific guidance on the issues that arise please do contact us at nw@stoneking.co.uk.
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