Disrupted holidays and security implications of business travel
Recent security events such as those which disrupted flights in and out of Sharm El Sheikh airport in Egypt earlier this month and the more recent terrorist attacks in Paris and Mali as well as those in Tunisia in July have meant that heightened security is likely to cause travel delays. Some of those trapped by the disruption in Egypt took several days to get back to the UK and were unable to return to work as originally planned. In the past we have also seen extensive travel disruption due to natural events such as severe weather problems, earthquakes and volcanic eruptions.
In circumstances where employees cannot get into work for reasons beyond their control, such as their return holiday flights being cancelled, employers need to understand their rights, duties and obligations in relation to those employees. They also need to consider the safety implications with regards to the welfare of their employees travelling on business.
Generally employees are required to turn up and work and employers are obliged to provide work and pay the employees for the work they do. So, if an employee is ready and willing to work, but the employer cannot provide work (for example, because the workplace is closed due to adverse weather) then the employer cannot make any deductions from the employee's pay unless there are clear lay-off provisions in the contract allowing this.
On the other hand, if an employee does not turn up and the management have not given permission for the nonattendance, this is considered to be an unauthorised absence from work and the employer's obligation to pay the employee does not apply. However, this needs to be considered alongside an employee’s statutory right not to suffer unlawful deductions from wages, or discrimination, and the statutory right to unpaid time off to deal with family emergencies.
Employers only have the right to withhold pay if an employee's absence is unauthorised. Employers therefore need to consider whether the terms of their employment contracts make it clear that absence due to circumstances beyond an employees’ control, such as flights being cancelled, is an unauthorised absence or whether the absence has been authorised in some other way, for example, by a manager. In cases where an obviously unauthorised absence may be grounds for disciplinary action, a deduction from wages will be unauthorised unless the employment contract gives the employer the power to deduct pay in these circumstances or the employee expressly agrees in writing to such a deduction.
However, an employer can always decide to exercise its discretion and pay employees for some or all of the days they cannot make it into work where their absence is beyond their control, and there may be good employment relations reasons for doing so. It is also important that all employees are treated consistently in these circumstances in order to avoid discrimination claims.
Other more practical ways to deal with the issue of absence due to unforeseen circumstances is for employers to consider alternatives to making pay deductions, such as agreeing with employees they will take the time off as paid holiday, or allowing them to make up time within a specified time scale. Whether an employer has the right to force the use of paid annual leave will depend on the contractual terms. So, if an employer wishes to deduct days off due to delayed or cancelled flights from an employee's annual leave entitlement, this should be communicated to staff clearly and applied consistently to avoid conflict. If you refer to your Adverse Weather Policy and this will give you some guidance on the principles to apply. But if you haven’t got an Adverse Weather Policy, perhaps now is the time to put one in place.
Keeping in touch
Employers should remind employees that if for any reason they have trouble getting to work – because they are sick or for any other emergency reason, including travel delays, they should contact their employer as soon as possible and provide regular updates so that the business can make contingency arrangements in their absence. Remember however, that it may not always be possible for employees to make immediate contact depending on the circumstances in which they may find themselves.
Of course employees don’t just travel abroad or elsewhere in the UK on holiday. Many of them travel on business. These recent terrorist events have reinforced the need for businesses to consider the safety and welfare of their employees. Making sure that adequate business travel insurance is in place is vital, as is doing a risk assessment to consider the need for the travel and other precautions that can be taken to minimise any hazards. An employee’s personal travel insurance is unlikely to be valid for business trips so consult your insurance broker to find a policy that will apply. Consider whether the meetings could be held by phone, video or webinar conferencing for example. If not, then employers should make sure that they follow the most recent advice posted on the Foreign Office website for the countries being visited. Employees should also be reminded to be vigilant whilst travelling and staying away from home.
If you would like discuss any aspect of the matters raised here, please don’t hesitate to get in touch.
Posted on 19 Nov 2016