Eruption and disruption: employment law implications of volcanic ash

Do you have to pay staff who are unable to get into work?

The basic proposition in employment law is that:

• employees are obliged to come into work;
• if they do not do so they are not entitled to be paid.

This applies unless:

• the reason for the absence is a good, preferably contractual one – for example holiday, maternity leave or sickness;
• the employer agrees that the employee can be away from work and still be paid.

This applies even in circumstances of extreme weather conditions, for example snow or air travel disruption from a volcanic ash cloud. However there is a wide range of circumstances to consider and there are arguable reasons why employees might be entitled to be paid, particularly if they do all that they can to get back to work and the failure to do so is not their fault. As it is not the employer's fault either, there is a balance to strike.

Legal limitations

There are two main arguments against the basic proposition outlined above:

• in some circumstances, deducting pay would be so unreasonable that it is a breach of what is called the 'implied term of trust and confidence', which means that the employer will not act in such an extreme way as to undermine the employment relationship. Whether or not this exception applies depends on the facts, but it is usually a lot harder to establish than many people think;
• unlawful deduction from wages - employees are entitled not to have any deductions made from what they are contractually entitled to receive as wages. This depends on being able to establish a contractual right to be paid in the first place.

In practice, it is better to avoid falling back on legal, technical arguments between employer and employees. There are various alternatives which employers could consider, depending on the nature of the business and type of employees concerned. In times of genuine emergency perhaps a reasonable balance should be struck between the financial burden on employers and employees.

Possible alternatives:

• encourage employees to try to get back to work, including using alternative modes of transport but without putting themselves at significant personal or financial risk. A reasonable degree of 'quizzing' about the possibilities of travel is acceptable –the employer should consider assisting with the cost;
• if appropriate, work remotely. This means that employees can in effect be 'at work' regardless of where, so that they continue to be paid. This applies to both continuing work assignments abroad and being unable to get back from holiday;
• make the time up later, if the business is of the type where this is viable;
• offer the option of taking the time either as paid holiday – so using any remaining holiday for the year – or as unpaid leave. Unpaid leave will only be available if it has already been established that the basic principle applies and the employees are not entitled to be paid;
• pay the employees, either in full or an agreed amount depending on the circumstances.

Holidays

An employer cannot insist that employees take the time as holiday. An 'offer' to take the time as paid or unpaid leave depends upon it being clear that there is no right to be paid for that time in the first place.

Conclusions

The basic principle is that employees are not entitled to be paid for unauthorised time away from work. However if they are ready, able and willing to attend work and if, in certain circumstances, it would be wholly unreasonable for an employer to refuse to pay it is arguable that this would be a breach of the implied term of trust and confidence or an unlawful deduction from wages, giving employees the right to be paid.

In practice it might be best for the employer and employees to talk to each other – taking an overly legalistic approach may not necessarily be in the interests of good employee relations and could have a negative impact on productivity and morale.

There are other considerations to bear in mind, such as the health and safety of employees working remotely and the childcare issues of families divided geographically. These may influence the reasonableness of the employer's stance.

The most effective way to deal with situations of this nature is to have a clear policy dealing with absence and travel in emergency situations, setting out what happens in different types of circumstances. Employers should also bear in mind that if employees call in – as most are required to do – to explain their difficulties, if the effect of the response from a manager is to approve the absence then that could make that absence authorised and create a right to be paid.