Sally Davenport looks at a topical issue

Holiday problems in employment law

Having already decided to do a series of articles on holidays and time off work due to a number of recent developments in this area of employment law, I could hardly miss the opportunity to address the current crisis in the skies and what it means for employers and employees – not least because my own daughter is stranded in New York.

Whilst volcanic dust may be unprecedented, adverse weather conditions and other “Acts of God” are not. The sun may be shining now, but it is not long since we were in the grip of ice and snow, causing traveller turmoil (and my own daughter stranded at Luton airport, unable to fly to Italy for Christmas – motto, avoid travelling with my family).

So, what is the position if an employee cannot get into work? The starting point, as with many employment law queries, is to look to the contract of employment and/or employee handbook. I suspect, however, that few employers will have made express provision for what should happen in cases such as the present. In all likelihood therefore, the position will be that if the employee cannot get into work (and assuming that the employee is not away on a business trip, when different considerations come into play) the employer does not have to pay the employee.

Given the unusual circumstances, rather than simply treating the absence as unpaid leave, the employer could consider:

• Treating this as an exceptional case and paying absent employees in any event, although care needs to be taken to ensure that the approach taken is consistent. It is also important to manage the expectations of employees still at work, who may have to do extra work to make up for absent colleagues. And what do you do about the employee who “volunteers” to take a later flight (as some of the girls in my daughter’s party did)?

• Allowing the employee to take the time off as part of his/her holiday entitlement so that pay is not lost.

The employee should be asked to keep the employer up to date with travel plans. It may also be possible for the employee to do some form of work remotely. I read of a teacher going to an internet cafe and teaching his class of students via a webcam! Certainly if contact can be made with the employee the employer should use the opportunity to find out if there is anything urgent that needs to be done so that arrangements can be made for someone else to deal with it.

The ACAS website (at the moment – 22/04/10) highlights two other scenarios that may arise in a situation like the present:

• What if it is not the employee who is stranded but the provider of care for the employee’s child or dependent? Employees have a right to a “reasonable” period of (unpaid) time off for dependents in an emergency situation. The amount of time is not specified in the legislation. It should be enough to allow the employee to deal with the immediate problem and put any other necessary care arrangements in place – probably no more than a couple of days, certainly not a couple of weeks. If this is likely to cause disruption to the employer’s business alternative working arrangements could be explored – for example can the employee work from home?

• What if there is no work for the employee to do? The obvious example is people working in the airline industry, but what if the employer has a niche business importing tropical fruit from Africa and all supplies are flown into the country? Can the employer send staff home without pay, or reduce hours? Once again, the contract of employment will normally dictate the answer. The rules on lay off and short-time working are quite technical, but the simple answer is that the right does not exist unless the contract provides for it (or there is provision in an agreement negotiated with a union or an industry-wide agreement incorporated into the individual contract of employment). In certain circumstances the right may become a term of the contract by virtue of custom and practice within the employer’s business, but this is unlikely in the case of an unprecedented scenario such as the present one which is affecting businesses not normally prone to the vagaries of supply and demand.

There is currently a lot of discussion about what can be learned from the events of last week. In the employment context, once the dust has settled(!), employers would be well advised to consider drafting policies for future such scenarios, not only so that a contingency plan is in place to cover work-related matters, but also so that employees know what their entitlements and obligations are when they are unexpectedly absent from work through no fault of their own.

Sally Davenport is a specialist in Employment Law.