Employees that cannot make it into work because of travel disruption do not have to be paid, unless employment contracts specify otherwise

Written by Joanna Chatterton and Azeem Mohiuddin for People Management
Publication date: 20 April 2010 Source: PM Online

Travel agents’ association, Abta, believes that about 150,000 British residents are currently stranded overseas as a result of the volcanic ash that has prevented flights coming in or out of UK airports. The European air traffic coordinating agency, Eurocontrol, reports that 63,000 flights have been cancelled since last Thursday.

Many employees have been unable to get to work as a consequence of the eruption. The situation is reminiscent of the snow chaos earlier this year, which left employers uncertain of their legal obligations to staff who could not attend work due to matters beyond their control.

Obligation to pay staff?
Employees are only entitled to be paid wages for work they have done. So, if employees cannot come to work and carry out the work they are paid to do, the employer is under no obligation to pay them. However, this is subject to the employee’s employment contract or any workplace policies that may provide otherwise. If a policy or contract of employment states that employees will be paid if they are unable to attend work because of matters beyond their control (such as volcanic ash), then employees have a contractual right to be paid. Without this right, employers may choose instead to exercise their discretion and pay employees who cannot make it into work as a goodwill gesture.

Can stranded days be holidays?
Under the Working Time Regulations 1998, employers requiring employees to take holiday must give them at least twice as much notice as the length of that holiday. For example, a requirement to take two weeks leave must be given with at least four weeks’ notice. However, the regulations allow employers to exclude this obligation and most will have done so these employers can require staff to treat days stranded abroad as holiday without the need to give notice.

Employers and employees can decide together whether to treat the time off as holiday leave or whether employees will make up the time lost by working extended hours in the following week, and so on.

Working off-site
For some this is a possibility. Employers should consider what the contract of employment and internal policies say about working away from the normal place of work and what facilities employees need to carry out their work. The last of these points will most probably dictate whether staff stranded overseas can work off-site.

Other alternatives may be possible. For example, some employers have asked stranded staff to work at their overseas branch offices or even a friendly client’s office. Obviously, this will not be possible for all types of work.

Transport home
Employers are under no obligation to pay for employees’ extra costs should they find a route to come into work, unless their employment contract provides otherwise, which is unlikely.

Immigration law
The flight ban has other implications for employees who are foreign nationals subject to immigration control. Two scenarios are particularly concerning. Employees whose immigration status is about to expire and who had planned to leave in time, but who now cannot (in other words, those “trapped in”) would normally be in breach of the law, potentially risking their future immigration status. The UK Border Agency issued an emergency announcement on 17 April to reassure this group that evidence of pre-booked travel is all they need to avoid trouble, and that they will be updated as the situation develops. At the time of writing, there is no word on policy for those “trapped outside” with imminent expiry dates, and who need to re-enter for appointments to renew their status.


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