The starting point is, in the absence of any contractual provision to the contrary, employers are not obliged to pay employees for any time during which they do not attend work. This applies whether or not the employees' non-attendance or lateness is due to an event outside their control. Only employees who are ready, willing and available to work are entitled to be paid.
Employees who are able to work effectively from wherever they are stranded should generally be paid. However, where flexible working arrangements are not feasible, there are several factors for employers to consider.
There is a strong argument that employees stranded while away on business should continue to be paid – in all likelihood they would otherwise have been ready, willing and available for work. For employees unable to get to work as a result of being stranded while away on holiday, some employers may choose to exercise their discretion and continue to pay them. If employees made their way home using alternative transport, such a gesture might be especially welcome due to the unlikelihood that they will be compensated by airlines for those additional travel costs.
However, if the employer does not want to make this concession, how should they manage the situation? The most straightforward solution is to ask employees to agree to take the time off as holiday. This should be done by agreement, unless the employment contract provides otherwise, there are strict rules under the Working Time Regulations 1998 as to the amount of notice an employer needs to give to an employee to take holiday. An employer acting after the event will fall foul of these provisions. However, the employee may prefer to agree to this rather than having to take unpaid leave of absence, which is the alternative.
What happens where the employee agrees to take the time as holiday but becomes ill on the days in question? European case law has established that workers who become sick during their statutory holiday should be entitled to take the sickness-affected holiday at a later date. Employers will need to consider the effect of such rulings on employees who have been stranded, the key issue being requirements to provide evidence of sickness. If stranded outside the UK, they might not be able to get the required medical evidence until they return.
Another option is offering employees the opportunity to work extra hours on their return to work (subject to the statutory limits) to avoid a deduction from pay.
If agreement cannot be reached, and the employer decides not to pay the employee for the time stranded away, it should inform the employee in writing, setting out their non-attendance at work as the reason (despite it not being their fault). Unless there is a contractual right to be paid in these circumstances (which would be very unusual) there would most likely not be an unlawful deduction from wages for any payment which is withheld by the employer for an employee's absence in this situation. However, to avoid discrimination claims and claims for unlawful deduction of wages, employers need to ensure they are acting consistently between employees and compared with other similar situations in the past (such as travel disruption due to snow).
Introducing a policy to cover unexpected disruptions of this nature is always helpful to avoid confusion. Such contingency plans and policies should be broad enough to cover all unexpected emergency situations and should be accessible to employees via staff handbooks or intranets, for example.
Nia Evans is a solicitor in the employment team at Blake Morgan