EMPLOYMENT NEWS – Eruption Disruption!

 Today the first few flights will start to land in the UK after a six-day shutdown. However, the airline industry has warned that it could take weeks before matters return to normal and before all Britons stranded abroad are able to return home.

The crisis is having a knock-on effect on businesses as thousands of employees are unable to get to work. But what obligations do employers owe to their employees who are unable to get to work and how should the situation be handled?

We have put together a few questions and answers which look at the key issues:

What is the legal position if I have employees stranded abroad and they are unable to come into work. Do I have to pay them?

The essence of any employment contract is that the employee makes himself available for work and the employer provides work. This is an individual agreement between the employer and employee. It creates a problem in law if an employee, who was on a period of authorised leave, does not return from that authorised leave.

In this case, the employee will either continue to be on authorised leave (if he contacts his employer and the employer permits it) or he will be on unauthorised leave (if he does not make contact).

The key question is whether the employees who continue to be on authorised leave are entitled to be paid for the additional leave, and the answer will depend on which of the three categories below the employees fall into:

1.   Senior employees who are on business abroad

If senior managers are working abroad and have access to the internet, laptops, blackberrys etc, it would be reasonable for employers to request that the employees continue to work as best they can whilst stuck abroad. If they are able to work, they will of course be entitled to be paid.

The employers’ main concern in this case will be whether the employees are genuinely working. Employers will have to monitor this as far as possible by maintaining regular contact with the employees and scheduling review meetings to discuss workloads on their return.

One issue that should not be overlooked is the payment of the employees’ expenses whilst they are away, for example for food, accommodation and perhaps clothes. Employers are advised to follow their normal expenses procedure as far as possible, but also to be aware that this is a one-off situation and therefore employees will not necessarily be able to adhere to the usual rules (e.g. obtaining approval in advance).

Whether the employees’ expenses are “reasonable” in the circumstances will be a judgment call. To minimise difficulties arising on the employees’ return, employers should keep channels of communication open and remind employees which expenses are and are not recoverable and that suitable evidence should be retained.

Employers should also check whether their business travel insurance covers expenses incurred by employees in situations such as this.

2.   Senior employees who were on holiday but who are able to work abroad

Some senior employees may be able to work abroad if they have access to the internet, notwithstanding that they were originally abroad on holiday and not for business. In this case, it would be reasonable for employers to expect they undertake work as best they can whilst abroad.

The employees would be entitled to be paid for their work and also to recover reasonable expenses. See guidance from (1) above.

3.   Junior employees originally on holiday

Junior employees or those who are not office-based are unlikely to be able to continue working whilst stuck abroad. In this case, the employer has the following options:

• treat the additional period of leave as an extension to the original holiday and deduct from the employees’ annual holiday entitlement. However the employees must consent to this – an employer cannot compel an employee to take paid leave without complying with the notice requirements under the Working Time Regulations, which would not be possible in this case;
• continue to pay the employees but require they make up the time when they return; or
• require the employees to take the time as unpaid leave. This is because there is no general legal right for employees to be paid if they are unable to get to work unless there is provision in the employees’ Contracts of Employment or Company Handbook, or an established custom and practice, all of which are unlikely.

Employers still have a duty to act fairly and reasonably and so they should ensure that any measures taken are carried out according to proper and fair procedure. This should minimise the risk of claims of unfairness or discrimination.

Employers who continue to pay the employees whilst they are away, or who allow them to use their holiday entitlement, should express that this is permitted on an exceptional basis only in order to avoid establishing a precedent.

Employers could also consider loaning employees who have run out of money enough to expedite their return to the UK, or alternatively make a one-off goodwill payment. Again, these should be expressed to be on an exceptional basis only.

Some of my employees have children whose schools are closed. Are they entitled to time off to look after them?

Employees are entitled to reasonable unpaid time off to deal with emergency situations that arise regarding their dependents. This could include having to look after their children if there is a disruption to the normal arrangements, for example a school closure.

How much time off is “reasonable” will depend on each employee’s particular circumstances. There are unfortunately no set guidelines, but the amount of time off should be at least long enough to allow the employee to put other childcare arrangements into place.

Again, to retain levels of morale, employers should try and see if there are ways in which staff could work from home if they have to remain at home to look after their children, or perhaps work different hours.

How should I manage employees who have returned to the UK but who have not come back to work?

It is possible that employees who have been stranded abroad will feel very tired and stressed when they return to the UK, particularly if they have travelled with young children or elderly relatives. In this case the employees may refuse to return to work immediately.

Cases such as this should be handled in the usual way in accordance with the employer’s sickness absence policy, although employers should meet with the employees sooner rather than later, even if this is not usual practice under the policy. Medical advice should be sought if necessary to determine whether a phased return to work should be implemented or whether any adjustments to the role are necessary.

Conclusion

All businesses have to assess how many of their employees are affected by this situation, and formulate a proportionate response to reduce the risk of claims of constructive dismissal, unlawful deductions from wages, breach of contract or discrimination.

Employers should implement their policies as far as possible to help manage the situation (e.g. Disaster, Business Continuity, Expenses, Absence) but allowances should be made to reflect the extraordinary nature of the situation.

Finally, remember that keeping the channels of communication open with employees is crucial to maintaining employee engagement, protecting the business’ reputation and minimising the risk of Tribunal claims.

If you have any specific queries relating to the content of this article or would like additional information on the issues covered please contact Ranjit Dhindsa.