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When Nature takes over

17 May 10

Where do employers and employees stand if unforeseen circumstances prevent an employee getting to work?

by Jane Fraser

No sooner had November’s flood waters subsided, than January brought a blast of Arctic conditions to the UK. Then, after the snow disruption had melted away, along came ash-spewing Eyjafjallajøkull to give employers a further staff management headache.

Stranded

If an employee is unable to get to work because of conditions outwith their control, does an employer have to pay them? Usually any attempt to dock pay, which has not been authorised by the employee’s contract, will result in an unlawful deduction from wages claim by the employee founded on s 13 of the Employment Rights Act 1996. However, an employer has a strong argument that pay is the employee’s return for being available for and completing work. As the employee has not been available for work and no work has been done, no pay is due.

Matters will be different of course if, for example, even though the employee cannot attend at their place of work, they can nonetheless work. This might be via a remote laptop or other internet connection, or by making use of a network of the employer’s or a partner organisation’s offices abroad. In these circumstances, payment should be made.

Employee’s offer of services refused

Where an employee has offered to work remotely, but this offer has been rejected by an employer, an employee might be able to argue that an analogy can be drawn with the case of Beveridge v KLM UK Ltd [2000] IRLR 765. The claimant had been off on long-term sick leave. Via a letter from her GP she had indicated her fitness to return. The employer refused to allow her return until its company doctor had certified her fit. This process took six weeks, during which time she was not paid.

The EAT held that this was an unlawful deduction from wages because, as the employee had made herself available for work, at common law she was entitled to be paid unless a particular clause of her contract stated otherwise. It would be for an employer to show an entitlement to withhold payment under the contract.

Employer business

Another possibility is that, rather than being abroad on holiday, the employee was on company business. Where that business was time limited, the individual may then have been left twiddling his/her thumbs waiting to return home. However, they are likely to have a strong argument for payment as they remain ready and willing to work for their employer, but circumstances beyond their control are preventing them from doing so.

There are those who will argue this is not so different a position from those who have found themselves stuck while holidaying. For this reason, if no other, employers should weigh carefully in the balance the cost of paying employees a few days' pay, against the high likelihood of a heavy negative impact on morale resulting from not doing so. It may be a situation where a practical rather than a legal solution is best.

Alternative solutions

When considering alternative solutions, these range from making payment as usual even where an individual has been prevented from returning from holiday, to withholding payment altogether.

Falling into the middle ground are options such as requiring use of annual leave to cover the period of absence. However, this will need to be agreed between the employer and the employee. By virtue of reg 15(2) of the Working Time Regulations 1998 (SI 1998/1833), an employer can require a worker to take annual leave on particular days. However, in order to do so, the employer must have given notice which is twice the length of the number of days the worker is to be required to take off. Forward planning of this sort is unlikely to have been possible while the volcanic ash cloud cast its shadow, therefore the employee’s agreement will be required.

Another alternative is to propose to employees that, instead of docking pay, lost time could be made up. If doing so, employers will need to ensure that night work limits are not breached, and that appropriate daily and weekly working time rest breaks are maintained, or compensatory rest provided (1998 Regulations, regs 6, 10, 11 and 24).

Policy considerations

It would be an over-cautious employer who had in place a “volcanic ash policy”. In any event, employers will not want to be too prescriptive in such circumstances. Just as the volcanic ash forecast changed by the hour, so will workplace circumstances. These sorts of occurrences call for discretion to be exercised, using common sense, while implementing rules fairly and consistently. Doing so will help ensure that workplace relations do not erupt, stemming the potential flow of employment tribunal proceedings.

  • Jane Fraser, Head of Employment, Pensions and Benefits, Maclay Murray & Spens; convener, Employment Law Specialist Panel

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