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Employers handling Iceland volcano fallout

20 April 2010

Last week’s volcanic eruption in Iceland is causing a legal headache for employers, as planes are grounded and staff left unable to get back to work.

Coming at the end of the Easter holidays, the flight ban has caused widespread travel chaos with thousands stranded or facing tortuous journeys home by alternative modes of transport.

Consequently, many employees who were expected back at work on Monday have been unable to return and employers must now decide how to deal with the situation.

Given the unique circumstances, it is very unlikely that staff handbooks and employment contracts will provide much assistance for employers. Where an employee has booked holiday and has failed to return on the agreed date this would normally be considered an unauthorised absence liable to disciplinary action.

However, when dealing with the current situation, employers need to bear in mind their duty not to do anything which could damage their relationship with employees – the duty to maintain ‘trust and confidence’.

Dealing harshly with employees could lead to a breach of such duty, which would entitle an employee, if they wished, to resign and claim constructive dismissal. In addition, such an approach is unlikely to enhance labour relations!

Employers should therefore take a sympathetic approach, and where possible allow employees to take additional holiday to cover the extra time they are away, albeit this would essentially be authorised by the employer retrospectively.

There is generally no obligation on an employer to pay an employee who has not actually carried out any work – unless there is a contractual right to such payment in the circumstances, which is going to be unlikely here.

Where employees do not want to take annual leave, employers could therefore agree with them to treat their absence as unpaid leave. Alternatively, an employer may allow employees to make up lost hours within an agreed period.

Given that many employees do not leave the BlackBerry at home when they go to the beach, if they have been managing to perform some or most of their duties remotely the employer needs to be more cautious before deducting pay as there is a risk of unlawful deduction from wages claims.
Of course, there is nothing to stop an employer from exercising its discretion and paying the employee in full for all or part of the absence.

However, employers will be aware that employees might be affected in different ways, and that they cannot expect the same of all their staff, dependent on where they are stranded and their personal circumstances.

Such a policy would need to be applied consistently to all affected employees with the same circumstances in order to avoid the risk of discrimination claims.

Comment

Given that extreme weather and natural events seem to be increasingly leading to disruption employers should try and formulate employment policies and business continuity plans to deal with any similar issues in the future.

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