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Absence from work and the Icelandic volcano

Met Office reports in early May say the Icelandic volcano with the difficult-to-pronounce name is still erupting (actually it seems that "Eyjafjallajokull" may be the name of the glacier above the volcano rather than the volcano itself). So it is probably not too late to consider some of the employment law implications.

These can best be divided into two parts, related respectively to those unable to get back to the UK from overseas and to those who are affected even though they personally are not abroad.

First, staff who are stranded abroad.

The basic position is that an employee is not entitled to be paid for time he is absent because of travel problems. However this, of course, is subject to the terms of his or her contract. Two particular points need to be borne in mind and specific advice should be taken where appropriate. The two points are (i) that the general rule is that it is unlawful for an employer to make any deduction from the wages of a worker employed by him unless the worker has agreed in writing to the deduction being made or it is a deduction required by law (such as PAYE); and (ii) that in respect of an employee who is absent abroad on work rather than holiday any refusal to pay in full not only wages but also additional expenses could in some cases arguably give the employee the right to resign and claim constructive unfair dismissal.

From a practical point of view, the best solution may be for the employer to come to a sensible agreement (by email or telephone) with a stranded employee, for example that some "stranded time" might be treated as counting towards paid holiday entitlement or coming to an agreement that lost time will be made up on returning home. It is relevant here to note that under the Working Time Regulations the basic rule is that an employer who requires an employee to take holiday at a particular time must give the employee notice which is at least twice as long as the amount of holiday to be taken.

Second, staff who are affected even though they personally are not abroad. This might be, for example, because they are required to do extra work to cover for a colleague who is stuck abroad or because they have to stay at home to look after a child or dependant as a result of schoolteachers or a carer being stranded abroad.

In respect of employees who are asked to do extra work, the Working Time Regulations are likely to be relevant as well as the terms of the individual's employment contract. Again advice should be taken, but in general terms, unless a worker has agreed to opt out of the "48 hours per week averaged over 17 weeks" maximum working hours limit, he or she has the statutory right not to be subjected to any detriment for refusing to do so. In respect of employees who cannot come into work because of child care responsibilities, note should be taken of the statutory rule that employees are entitled to a reasonable amount of unpaid time off work to deal with emergencies involving a dependant.

Further, employers must remember that the Working Time Regulations provide a statutory right to rest breaks. In general workers are entitled to rest breaks of at least 20 minutes every 6 hours, plus 11 hours in every 24 hour period and at least 24 hours each week or 48 hours each fortnight.

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