- Allowing employees to make up the time at a later date (if this is feasible, given the nature of the business). The advantage of this approach is that it is likely to minimise any ill-feeling on the part of absent employees, as well as those who are able to come to work and who are facing increased workloads while their colleagues are away and enjoying an extended holiday (as it may be perceived).
- Offering the option of taking the time as paid holiday (so using any remaining holiday for the year). However, employers should not insist that employees take the time as holiday as they could be in breach of their obligations under the Working Time regulations – although employers can require employees to take holiday at specific times, they need to comply with certain notice requirements which are unlikely to be satisfied where an employee is forced to take an unauthorised absence as holiday.
- Paying employees, either in full or an agreed amount, depending on the circumstances. Employers who decide to take this option will need to manage the risk that the system is abused, for example by maintaining regular contact with employees who claim to be stranded, encouraging them to get back to work if possible, including using alternative modes of transport (although without putting themselves at significant personal or financial risk). A reasonable degree of quizzing about possibilities of travel is acceptable, and, in some cases, employers may want to consider assisting with the cost.
Don't get in a lava
3 mins read
What should employers do if their employees are absent from the workplace due to weather-related disruption or other unforeseen circumstances? Jenny Makin reports
The ongoing disruption caused by the now infamous Eyjafjallajökull volcanic ash cloud has seen many travellers stranded abroad long after their holidays should have ended. As with the snow chaos earlier this year, this has meant that in some cases employees have been forced to take unplanned absences from work of several days or more.
Employers affected by absences of this nature need to consider how best to deal with employees who are unable to come to work through no fault of their own. The basic legal position is that employees who do not come to work are not entitled to be paid, except in certain circumstances such as holiday, maternity leave or sickness, which are either prescribed by statute or set out in the employee's contract of employment.
As there are no statutory provisions which deal with a situation where employees are unable to attend work due to adverse weather conditions, the starting point for employers will be to review employees' contracts of employment to check whether there any express contractual provisions which cover the situation. If there are no such provisions, employers should consider whether the right to be paid may have been implied into employees' contracts through custom and practice because the employer has previously paid wages to employees who have been unable to carry out their work.
Where, as in most cases, employees are unable to point to a contractual right to be paid, the employer can lawfully withhold payment for the employee's period of absence. But bear in mind there are some provisos. In certain cases, for example, deducting pay could be so unreasonable that it could arguably be a breach of the 'implied term of trust and confidence' which is present in every employment relationship (in other words, the employer's actions would undermine the employment relationship). Whether such an argument is likely to succeed would depend on the particular facts of the case, but it is an issue to be aware of.
Another factor to consider is that when an employee calls in to notify their manager of their difficulties, the manager may inadvertently approve the absence, unwittingly making it an authorised absence, which creates the right to be paid. Clear instructions should be issued to managers so that they know how to respond to communications from employees who find themselves in this situation.
However, even where the basic legal position applies, employers should consider the potential negative impact that withholding payment may have on productivity and staff morale. There may also be other issues to bear in mind, such as the health and safety of employees attempting to get into work, or childcare issues of families divided geographically. These may influence the reasonableness of an employer's stance.
Where an employee is genuinely willing, ready and able to work, perhaps the most reasonable approach could be to strike a balance between the financial burden on employers and the difficulties of employees. Alternative courses of action could include:
