As the dust settles…

Although the Icelandic volcano is still gurgling, but thankfully not hiccupping much ash, and British airspace has now been reopened, the fact remains that many employees are still stranded abroad.

Although British ingenuity in getting back home appears to know no bounds, and the Dunkerque spirit has returned, with an armada of coaches on their way to Madrid and the Royal Navy dispatched to foreign ports to pick up stranded travellers, the issue of how employees who have not been able to return to work still needs to be considered.  So what is the position?

The basic legal position is simple: employees don’t have the right to be paid if they are not able to carry out their work unless their contract of employment gives them the right to payment in such circumstances.  The first consideration therefore is: does the contract of employment or any other document, such as a handbook or a policy, which forms part of the contract, provide employees with such a right?

If there is an express contractual right to payment and the employer doesn’t pay, then the employee can claim breach of contract, which may include a claim for constructive dismissal if the employee resigns in response to a fundamental breach, and has a year’s service. Alternatively the employee could make a claim for unlawful deduction from wages.

Even if there is no contractual right to payment, but only a ‘payment at discretion’ policy in place, employers must still be careful in determining their approach as there could still be a breach of contract if an employer exercises a discretionary right in a perverse or irrational way.

If there is no contractual or discretionary  right to be paid, then the employer is free to determine what approach it will take, as long as in doing so it does not act in a way which is calculated, or likely to seriously destroy the employee’s trust and confidence in the employment relationship. Within this context, it would be wise for employers to have in the back of their minds that many employees may have ‘moved Heaven and Earth’ to get back to the UK, including spending lots of money in doing so, and /or have been through a worrying period with understandable feelings of distress and uncertainty.

In deciding what to do, one of the first considerations is to recall the approach taken in similar situations, for example, when employees were unable to get to work because of heavy snow earlier in the year. Employees will expect some degree of consistency of treatment, even though the circumstances may not be exactly the same.

Where there is no contractual right to a payment, or a discretionary rule in place which may allow for payment, there are a number of options open to employers:

• Treat the time lost as unpaid leave.
• Offer the employee the option of taking the ‘days’ lost’ as paid annual leave
• Agree with the employee that he or she will be paid for the time when absent from work but on the basis that the time lost must be made up over a set    period, without of course breaching any limits under the Working Time Regulations 1998.
• If the employee has kept in touch and is still able to work effectively, ‘remotely’, while abroad, continue to pay him or her as normal.
• Just pay the employee as normal for the time lost on the basis that ‘they couldn’t help it’

If pay is ‘docked’, then bearing in mind the trust and confidence issue, and the unique, unprecedented circumstances, employers may wish to reduce the immediate impact by offering to spread any deduction over a number of months.

Whatever option is chosen employers should communicate the policy being adopted by the business and consult with each individual over its application. Whatever the decision, all employees must be treated consistently.

4 May 2010
Human Resources news brought to you by theHRDIRECTOR ; the only independent strategic HR publication.