The flight ban caused by the Eyjafjallajokull volcano has now been lifted, and stranded Britons are returning home. During the flight ban, many employers will not have mentioned how the forced absence of their workforce would be dealt with - perhaps not wanting to add to the woes of employees who were struggling to get home, or perhaps because they simply had not decided how this unprecedented situation should be dealt with. Now that the situation is returning to normal (at least for the moment), some decisions need to be made.
The most organised employers may have put procedures in place to help them to deal with the situation. Remote working is an option for many workers and Skpe and video phones make it easy for workers stranded abroad to stay in touch. The threat of swine flu in 2009 and the extreme weather in January and February this year forced some businesses to look at their procedures and put plans in place to allow the business to continue in emergency situations. If employees are working whilst they are stranded abroad, they should be being paid as normal. On the other hand, some workers will simply not be able to perform their role unless they are at their workplace. With the UK declared as a ‘no-fly' zone for almost 6 days, it is clear that a number of businesses were understaffed and struggled to cope.
Although stranded employees have been unable to return to work through no fault of their own, there is no legal duty on employers to pay employees who cannot work. The teachers' union, NASUWT, has threatened to bring claims for unlawful deduction of wages if stranded teachers have their pay docked on their return. However, it seems unlikely that such claims will succeed for the simple reason that the teachers in question were not available for work in the relevant period and are therefore not entitled to be paid for any work.
On the other hand, employers should be sympathetic to the plight of their staff members and withholding pay for a situation that was outside of employees' control (particularly if those employees have had to endure long, arduous and expensive journeys home) may be extremely damaging to employee morale. There is also a risk of employers breaching the duty of trust and confidence, which is implied into every contract of employment, if the employer's behaviour is particularly unreasonable or unfair.
A sensible course of action for employers to adopt would be to sit down with any employees who have been absent as a result of the flight ban and discuss the options. If the business does not want to pay its employees for the days they have had off, it could ask employees to take the days as holiday. Employers with shift workers may be able to swap shifts around or allow employees to make the time up somehow. Alternatively, employees could be given the option of taking the leave as unpaid leave.
In reality, there is no script for employers to follow for this situation and there are obviously no precedents to look back upon. A process of consultation with the affected employees is advisable and businesses could be guided by existing policies on flexible working, unpaid leave and holidays. In any event, whichever way employers decide to deal with the absences, it is crucial that they are consistent with their treatment of employees - otherwise they may find themselves facing claims of discrimination.
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