I cannot come to work today.... a volcano has erupted!
It’s usual for adverse weather conditions to cause employees to cry off work. But it’s estimated that 500,000+ were stranded when our airspace was shut following a volcanic eruption. An original “excuse”, but do they get paid?
In an unprecedented move, UK airspace was recently closed for more than a week after a volcano erupted in Iceland spewing ash in our direction. This couldn’t have come at a worse time; it coincided with the Easter break meaning large numbers of employees were on annual leave. This caused immense disruption and it’s estimated that in excess of half a million people were stranded abroad.
Although it will have caused those travellers nothing short of a nightmare to get home, there’s been a negative knock-on effect for many employers too. If their employees failed to return to work, they’ve had to cope with the shortage and many have needed to bring in temporary cover (not budgeted for).
You will no doubt have heard before: “I can’t get in because of the snow”, or “The train drivers are on strike”, but, “See you in ten days, a volcano has erupted” is probably a new, not to mention original, one. So what many of you want to know - and what’s caused the legal experts to get hot under the collar - is whether any of these employees have the right to be paid.
Not paying for the absence - Is it An Unlawful deduction?
It’s been suggested that withholding pay in this situation will amount to an “unlawful deduction of wages” and affected individuals can bring a tribunal claim if their employer takes this step. But is this really the case?
CoLaw Employment Law Consultants do not think so. There is an implied term in any contract of employment that an employee must turn up for work unless they have permission from you not to do so, e.g. annual leave. If they don’t, then any absence is “unauthorised”.
No precedent. What’s more, as this situation is unheard of, employers won’t have developed a “custom and practice” to deal with it. This means that they can’t be accused of previously paying staff in similar circumstances.
Because of this it’s difficult to see how employees could successfully argue that they’re entitled to be paid in these circumstances. Whilst it’s not their fault they couldn’t get home, it’s not yours either, and you shouldn’t be footing a wages bill.
Are there any alternatives?
You could give them a choice to take some, or all, of the time as paid annual leave or to make it up at a later date if they don’t want to lose the money. But you can’t insist the time is taken from statutory paid annual leave as you must give double the notice of the time that you want them to take, e.g. five days off requires ten days’ notice.
Advice
A severe disruption policy allows you to withhold pay at your discretion. If you don’t have one already, there’s no reason why you can’t introduce one now and CoLaw's Employment Law Consultants could prepare it for you.
Unless you’ve given an employee permission to be absent, they have a duty to turn up for work. If not, it’s unauthorised absence. Also, as this situation is unprecedented they will have trouble arguing that you have a “custom and practice” of paying other staff. So they can’t demand that you pay them.