Poppleston Allen, will the ash cloud cause an eruption of employment claims?

By | April 18, 2010

Will the ash cloud result in an eruption of employment tribunal claims?

With thousands of people having been stranded in foreign lands due to the Icelandic volcano, unable to return to work from their holidays. I have been asked where both employers and employees stand in relation to these absences from their place of work. Issues that arise when employees cannot resume work after an authorised break include:

As an employer do you have to pay them?

Employers are not obliged to pay for days of absence. Where the employee is perhaps one of two or three employed, such as in a small licensed premises, other part time staff may have to be engaged to fulfil the shortfall generated by the absence of the employee.

A reasonable employee would consider offering the employee the choice of either taking further holiday to cover the period of absence or taking unpaid leave.

Can the employer discipline employees who have unauthorised breaks of service? Would it be reasonable for the employer to consider such action given that the absence was due to the act of God or Mother Nature?

The question is whether in these circumstances disciplinary action would be reasonable – is it within the range of reasonable responses, open to a reasonable employer, for dealing with unauthorised absence? This is the question an employment tribunal will ask if the employee takes the matter to a tribunal. It would not be a surprise, with the circumstances as they have been, that an employee would be able to challenge a decision to discipline them due to absence caused by Eyjafjallajokull erupting.

However, if the employer can establish fault on the part of the employee – if an employee has avoided potential assistance to be brought home via another route and decided to wait for the air corridor to be re-opened, thus prolonging the absence, this would be relevant to the decision by the employer to discipline, or not. Failure by the employee to communicate with the employer may also be determined to be unreasonable if telephones/internet were readily available.

Reasonableness therefore is the key word to the way you should react as an employer.

For more information please contact Nick Walton .

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