Out-Law Guide | 10 Mar 2019 | 11:34 am | 3 min. read
This guide considers the impact of volcanic ash clouds, the disruption to airline travel and the subsequent impact on employees who are stranded and cannot get into work.
Do you have to pay staff who are unable to get into work?
The basic proposition in employment law is that:
This applies unless:
This applies even in circumstances of extreme weather conditions, for example snow or air travel disruption from a volcanic ash cloud. However there is a wide range of circumstances to consider and there are arguable reasons why employees might be entitled to be paid, particularly if they do all that they can to get back to work and the failure to do so is not their fault. As it is not the employer's fault either, there is a balance to strike.
There are two main arguments against the basic proposition outlined above:
In practice, it is better to avoid falling back on legal, technical arguments between employer and employees. There are various alternatives which employers could consider, depending on the nature of the business and type of employees concerned. In times of genuine emergency perhaps a reasonable balance should be struck between the financial burden on employers and employees.
An employer cannot insist that employees take the time as holiday. An 'offer' to take the time as paid or unpaid leave depends upon it being clear that there is no right to be paid for that time in the first place.
The basic principle is that employees are not entitled to be paid for unauthorised time away from work. However if they are ready, able and willing to attend work and if, in certain circumstances, it would be wholly unreasonable for an employer to refuse to pay it is arguable that this would be a breach of the implied term of trust and confidence or an unlawful deduction from wages, giving employees the right to be paid.
In practice it might be best for the employer and employees to talk to each other – taking an overly legalistic approach may not necessarily be in the interests of good employee relations and could have a negative impact on productivity and morale.
There are other considerations to bear in mind, such as the health and safety of employees working remotely and the childcare issues of families divided geographically. These may influence the reasonableness of the employer's stance.
The most effective way to deal with situations of this nature is to have a clear policy dealing with absence and travel in emergency situations, setting out what happens in different types of circumstances. Employers should also bear in mind that if employees call in – as most are required to do – to explain their difficulties, if the effect of the response from a manager is to approve the absence then that could make that absence authorised and create a right to be paid.