by Stephen Simpson, Brightmine Principal Editor, Employment Law and Compliance
1. Employees stranded because of flight cancellations
As a general rule, employees who have an unplanned absence when they are expected to be at work are not automatically entitled to be paid.
This is because the onus is on employees to get to work and the obligation to pay them under their contracts of employment arises only where they are ready, willing and available for work.
If employees fail to turn up for work because of flight cancellations, the employer is under no obligation to pay them for time not worked, even though their absence was through no fault of their own.
There are a number of options open to employers to solve this problem, including asking employees if they would like to take the time they are absent as annual leave (provided the notice requirements to make workers take leave on particular dates are followed).
Is an employer required to pay employees who arrive late or do not arrive at all due to disruptions to public transport?
There is no obligation to pay employees who fail to attend work, or who arrive late, due to public transport disruption, unless there is specific contractual provision for this. The onus is on the employees to get to work and the obligation to pay under the contract of employment arises only where they are ready, willing and available for work. If employees fail to turn up for work or turn up late in these circumstances, the employer is under no obligation to pay them for time not worked, even though their absence or lateness was through no fault of their own. A failure to pay an employee in this situation is not an unlawful deduction of wages under s.13 of the Employment Rights Act 1996 because there is no contractual right to any such payment.
However, if employees are having problems getting to work due to public transport disruptions, the employer may wish to consider making some accommodation for them. The employer should first encourage the employees to explore alternative means of transport, for example other public transport options, walking, cycling, travel by car or car-sharing with other employees. If an employee is still unable to attend work, the employer may wish to give consideration to whether the employee could usefully work from home or from an alternative local office until the travel situation improves, or whether the time could be made up at a later date. If these are not viable options, the alternatives available for the employer are to advise the employee that any time off work in these circumstances will be unpaid, paid or paid on a discretionary basis but in exceptional cases only. The employer could also suggest that the employee take paid annual leave if they wish to be paid for the time off. An employer cannot insist that an employee take annual leave without the requisite notice but there is nothing to stop it asking if an employee would like to take a day’s holiday because of being unable to attend work on that day.
Can an employer require its employees to take holiday at a particular time?
Yes, an employer can require employees to take annual leave, provided that they follow the relevant procedures, in particular giving the employee the required notice.
The procedures that must be complied with regarding annual leave may be set out in a “relevant agreement” (reg.15(5) of the Working Time Regulations 1998 (SI 1998/1833)). A relevant agreement is a collective or workforce agreement, or any other written individual agreement that is legally enforceable between the worker and the employer, for example a contract of employment.
If there is no relevant agreement that applies to the employee, the employer may require them to take annual leave on particular days by giving them notice, specifying the day or days on which they must take leave. The employer must give the employee at least twice as many days’ notice as the number of days’ leave it requires them to take (reg.15(3) and (4)). For example, if the employer requires the employee to take one week’s annual leave at a particular time, it must give them at least two weeks’ advance notice.
Countries affected by conflict in the Middle East
Bahrain, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Oman, Palestine, Qatar, Saudi Arabia, the United Arab Emirates and Yemen. Flights with stopovers scheduled in these countries could also be affected.
2. Employees working flexibly when stranded because of flight cancellations
If employees are unable to get to work because of flight disruptions over which they have no control, employers may wish to employ flexible working practices if the nature of their work allows it.
As it is now common for employees to have laptops with them on annual leave, one viable option may be requesting that staff work remotely.
On returning to work, shifts could be swapped or employees could agree to work extra hours to make up lost time (provided that working time rules, for example those on rest and the 48-hour working week, are observed).
3. Employees putting their safety at risk to get back to work in time
It is easy to imagine a dangerous scenario after an employer adopts an overzealous approach towards an employee who is having difficulty getting back to work because of flight disruptions.
An employee stranded somewhere who is threatened with disciplinary action if they do not turn up for work on time might attempt an unconventional, possibly risky, method of returning home.
In those circumstances, the employer could be breaching its duty of care towards the employee if its approach leads to the employee putting themselves in danger.
4. Employees seeking to cancel or amend holiday dates
One potential scenario is an employee who has already booked flights to the Middle East being forced to cancel or change the dates of a trip.
In these circumstances, do employers have to agree to employees’ requests to cancel or change annual leave dates that have already been agreed?
Technically, employers are not obliged to agree to change booked periods of annual leave (unless employees have a contractual right to cancel leave).
However, it is good employee relations to allow leave dates to be amended where there is a valid reason and the needs of the business permit it.
The cancellation of flights is an instance where employers should be flexible when employees wish to amend leave.
5. Employees’ business trips affected by flight disruptions
What are employers’ obligations if an employee’s flights are disrupted while he or she is on a work-related trip?
The extent of an employer’s responsibility for paying an employee’s expenses if a business trip is extended due to flight disruption will depend on the employer’s expenses policy.
Most policies will include a requirement for the expenses to be “reasonable”.
It is therefore highly likely that the employer would be required to pay for the additional expense of rearranging travel and other extra expenses incurred (for example, accommodation and subsistence) until the employee is able to return home.
The employee should remain in contact with the employer to provide updates on the options for his or her travel and, where possible, obtain prior authorisation for any expenditure.
If an employee abroad on a work-related trip is affected by travel disruption, is the employer responsible for the cost of alternative travel arrangements for the employee to return home?
Whether or not an employer is responsible for the cost of alternative travel arrangements if an employee is unable to return home as planned will depend on the terms of the expenses policy. Most policies will include a requirement for the travel expenses to be “reasonable”. The employee should remain in contact with the employer to provide updates on the options for their travel and, where possible, obtain prior authorisation for any expenditure.
The reasonableness of the alternative travel arrangements will depend on the circumstances. For example, if the employer insists on the employee returning as soon as possible by whatever means they can arrange, it should pay the cost. However, if the employee makes unreasonably expensive arrangements without the employer’s prior agreement, for example by hiring a taxi when they could have taken a train, the employer could argue that it is not required to pay.
If an employee abroad on a work-related trip is unable to return to the UK due to travel disruption, is the employer responsible for paying for their accommodation and food?
The extent of an employer’s responsibility for paying an employee’s expenses if a business trip is extended due to travel disruption will depend on its expenses policy. Most policies will include a requirement for the expenses to be “reasonable”. It is therefore likely that the employer would be required to pay employees’ reasonable accommodation and subsistence expenses until they are able to return home.
The policy should be applied fairly and reasonably and the employer should be mindful of its duty to maintain mutual trust and confidence with the employee. If it refuses to pay the employee’s reasonable accommodation and subsistence expenses in these circumstances, the employee could argue that this amounts to a breach of contract.
The employer should require the employee to remain in regular contact and to provide details of their current circumstances, including details of any likely expenditure.
The employee should take steps to mitigate the cost of the disruption by making arrangements to return home as soon as reasonably possible.
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About the author
Stephen Simpson
Principal editor – Employment Law and Compliance, Brightmine
Stephen is a principal editor who has worked on the Brightmine employment law and leading practice resources for over 20 years. After growing up in Northern Ireland in the 1980s, he trained as a solicitor in England in the 1990s but soon moved into legal publishing. He was among the first recruits to Brightmine in the year before it was launched as XpertHR in 2002.
Stephen has worked on a wide range of employment law and leading practice resources, including overseeing the creation and expansion of the HR templates resource types (Policies and procedures, Letters and forms, and Contract clauses). He has written up over 1,000 reports on employment law cases and created practical guidance on a range of HR issues for the Commentary & insights tool. He also had a stint working on Personnel Today.
Connect with Stephen on LinkedIn.
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