Legal Update for Ash Cloud Queries
27th April 2010
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Q. One of my employees is stranded abroad due to the ash cloud – do I have to pay them?

A. The short answer is no; there is no statutory obligation to pay an employee who is not attending work for an unauthorized reason. However, some employers are proposing that employees should use their holiday entitlement to guarantee payment. Other employers are taking a benevolent approach and paying stranded employees, as a goodwill gesture. However, some are taking a hard line on the basis that if the employee cannot attend work, the fault is not that of the employer and that the employee must suffer the consequences.

Q. Can I treat an employee stranded abroad after a holiday as being absent without leave and take disciplinary action?

A. It is not likely that an employment tribunal would be very impressed with this course of action and therefore this is not advisable. The ash cloud would be considered by a tribunal to be a ‘force majeure’ which is without doubt beyond the control of the employee. You have the right to be kept informed regularly by the employee, but to discipline them for being AWOL would be considered too harsh a reaction.

Q. One of my employees had booked leave this week but cannot go on holiday given the ash cloud. Can I still force them to take the holiday or must I allow them to reschedule their holiday?

A. Unless there is anything to the contrary in their contract of employment, yes, you can force the employee to take their scheduled holiday. If the employee had not been able to take the scheduled holiday because o fillness, that would be a different matter. However, it may be better practice to allow the employee to reschedule, providing it does not have a negative impact on business needs or on colleagues.

Q. An employee has told me they cannot come into work because they are stranded abroad but I do not believe them. What action can I take?

A. In this situation, you should follow the same course of action as when an employee does not return from holiday on the date they had previously specified. You should ask for proof of travel dates and if you are proved right in your supposition, this would be a disciplinary offence. It is advisable to tackle this situation with a conciliatory manner, because if you are incorrect, the consequences of a heavy handed approach could lead to a claim of constructive dismissal. Therefore, it would be prudent to ask all employees who are absent owing to the ash cloud to present proof of travel dates, which will show consistency and fairness.

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