After the recent spate of security alerts at airports here and in the US, you may well have had employees returning to work after the date on which they were due back from holiday.  Below are some tips as to how you might deal with this situation.

First of all, check whether your handbook or holiday policy/procedure document covers this scenario.  If it does, you should follow whatever that document says.  If the matter is not dealt with in any policy document, the key consideration is the status of this absence – will this be regarded as additional holiday or unauthorised absence?

Flowing from this are two issues:

  1. How is the company going to address it in terms of payment?
  2. Will this be regarded as a matter of misconduct which could justify a disciplinary approach?

As regards payment, if the absence is regarded as additional holiday, it would be paid in the normal way.  There is therefore no loss of pay for the employee but this will obviously reduce the employee’s remaining holiday entitlement for that particular holiday year.  If the absence is regarded as unauthorised absence, this could potentially be unpaid although the company would need a specific written ability to deduct pay in respect of this type of absence from an employee’s salary which had been agreed in advance by the employee.

In respect of any disciplinary consequences of the absence, relevant considerations will be how quickly the employee has notified the company that he or she will not be able to return on the date specified and the reason for that delay.  If the employee does not communicate with the employer, simply does not turn up to work when he should, is uncontactable and can give no satisfactory reason for his late return, this may well be a situation where disciplinary action is appropriate.  On the other hand, if the employee notifies the company as soon as possible and the delay is no fault of their own (for example, employees caught up in the recent airport security situation) it seems unreasonable to regard this as a disciplinary matter.

If there is no policy and the company deals with these matters on a case‑by‑case basis, it should ensure that there is clear reasoning in each case, that this is documented and that there is a consistency of approach.

As soon as possible after an employee’s late return from holiday, a meeting should take place with HR to obtain a full explanation from the employee as to what happened and why they were delayed.  The company should then have sufficient information to carry out an initial assessment as to whether there is no fault on the part of the employee or whether the situation warrants a more thorough investigation for the purposes of possible disciplinary proceedings.

If this matter is not already covered in your handbook or holiday policy, it would be advisable to amend this document to deal with this issue.  The policy should specify the status of any days which have not been pre‑booked as holiday, i.e. whether they will be regarded as further holiday or whether the company will regard them as unpaid leave and explain the consequences of this situation.  Employers may well wish to reserve to themselves the right to regard such absence as unpaid unauthorised absence which could lead to disciplinary proceedings.  As mentioned above, in practice, the specific facts will be highly relevant as to whether the company adopts this approach or not but it would be helpful to have the ability under the handbook to take this approach.

A practical way to seek to minimise employees returning late from holiday is to amend the holiday policy or the staff handbook so as to encourage employees to allow for some element of delay when booking a holiday and stating that employees should not come to work straight from the airport where the chance of being delayed is high.  Clearly the employer cannot compel employees not to do this, but if there has been a breach of the handbook/policy, this may entitle or assist the employer to adopt a disciplinary approach. Similarly, the policy/handbook could require employees not to come to work where they are likely to be significantly jet-lagged i.e. to book sufficient holiday to allow for this.

The policy should require employees to call or leave a message as soon as they know that they will be delayed, it should state who they should contact and it should require them to give their best estimate as to the length of the delay.  The policy should also provide for a meeting with HR shortly after the employee returns to work.


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