As the air travel chaos looks set to continue employers want to know who is going to pay? 

The present chaos in air travel caused by the volcanic eruption in Iceland is set to cause significant disruption in the workplace. ABTA, the travel industry body, has estimated 150,000 UK workers are unable to return home in time to resume work.   As a consequence some employers are going to sustain disruption and loss.  But what are those employers' rights?

Clearly the fault does not lie with those employees who, despite (hopefully) using their best endeavours, may not be able to return to the UK for another 3 or 4 days.   Employers will have to fill the gaps wherever they can by utilising existing staff to cover absences and possibly hiring temporary cover.  The cost of this might be recoverable under certain types of business interruption insurance. 

But what about the absent employees themselves?   Are employers entitled to instigate disciplinary action against them for unauthorised leave?   And how should an employer treat the additional time off?  Is it holiday or can deductions be made from the employee's salary for the inconvenience caused to the employer?

As far as dismissal is concerned the answer, is of course, a definite "no".   The predicament is not one of the employee's own making.  Unless an employer has evidence to show that the employee was malingering where appropriate and alternative travel arrangements were easily available to him (and this is likely to be difficult to prove), then any dismissal will almost certainly be viewed by an Employment Tribunal as unfair.   A large bill in the form of compensation is sure to follow.

If an employer is minded to do so they may consider docking an employee's salary.    However, unless there is a specific clause in the employment contract giving the employer the right to deduct salary in such circumstances, then this deduction will not be permitted by law and would be an unlawful deduction from salary under Part II of the Employment Rights Act.    This would certainly land an employer in the Employment Tribunal.   If an employer needs to consider this option, check the contract first as the law only allows for salary deductions to be made without the employees specific written consent in very limited circumstances - and this not one of them.

The only other option for employers is to look to holiday and leave arrangements.   It is permissable for an employer to insist that the additional days absences are either deducted from the employees annual holiday allowance or taken as unpaid leave, effectively reducing salary.    This last option is practically the same as deducting salary - but legally, a different mechanism is used and one that is permissible.

Some employers may have absence policies in place to deal with issues of this nature.  In those cases, employers should follow that policy and ensure that it is consistently applied.    Others may not have policies or the policies they have may not cover this particular scenario.    In that case, those employers should look to updating and implementing their absence policies at the earliest opportunity.

If you have further legal questions arising from this situation or need any other legal employment advice then please contact David Malamatenios on (020) 7354 3000 or david.malamantenios@colmancoyle.com