Eruptions at Work

Extremes in weather and natural disasters have been a hot topic in the workplace this year. Arj Arul takes a closer look at the problems employers might face.

The widespread disruption caused by clouds of volcanic ash in European air space is well publicised. Whilst some may have enjoyed unexpectedly extended holidays, for many the disruption has come at a cost.

Generally speaking an employee whose return to work is delayed due to naturally occuring events will only be entitled to be paid where their trip is work related. If this is not the case, and the employee is therefore not in a position to work, albeit not by choice, they are not entitled to be paid. Of course, unforeseen absence (such as for sickness) will often be catered for in employment contracts, but this may not, for example, deal with unusual events such as natural disasters.

There may have been a historical custom of paying employees for unusual absences, or even more formal policies for industries reliant on airline travel. Employers should respond flexibly to any situation where employees are absent from work due to circumstances outside of their control, although it is important to safeguard against abuse. If an employee appears to be acting unreasonably then proper investigation should be undertaken following relevant disciplinary procedures. If an employee can work remotely then they are likely to be entitled to payment as they are in a position to work.

The use of annual leave can be used to cover the period of absence, although this may require notice unless both employer and employee agree. An employer faced with an uncooperative employee may give notice for annual leave to be used although whether the period of notice itself is paid or unpaid may depend on the terms of any contract or custom. Remember that if an employee has a right to be paid then failure to do so may be unlawful – in extreme cases unreasonable behaviour by the employer may give grounds for constructive dismissal.

Only rarely should an employer contemplate dismissal, which will usually be reserved for situations where an employee has not notified the employer of the reason for absence, made reasonable attempts to attend work, or the period of absence is lengthy. In all these situations the context is crucial, and the fact that there is widespread publicised disruption may raise the tolerance which an employer is expected to exercise.

Policies should be clear and set out what is expected of employees in terms of notifying their absence and trying to mitigate it, for example by working remotely. They should also make clear the employer’s position on payment for time away and whether employees will be expected to use up annual leave. When things go wrong, investigation and disciplinary measures should be used proportionately. As with many things in life, prevention is far better than cure, and good information to employees combined with a flexible approach can help to maintain good employee relations.

If in doubt, specialist advice should always be sought. Arj Arul can be contacted at Mills & Bann Solicitors on 01635 521545 or at arj@mblaw.co.uk.