In this guide, we consider some of the problems you may have to deal with if an employee is stranded abroad or if their holiday is cancelled at the last minute.
Stranded employees
Pay for time off work
One of the primary concerns of stranded employees will be whether they are entitled to be paid for any period of unexpected or unplanned absence.
If an employee is unable to work because they are stranded abroad, it is unlikely that they are entitled to pay. Unless their contract, or employer policy, explicitly specify otherwise, which is typically rare, employees are not automatically entitled to be paid for the time they are unable to return to work as a result of any such travel disruption.
Therefore, the first thing an employer should do is read the terms of the employment contract. If the employee is not entitled to pay in these circumstances, the pragmatic approach would usually be to explore further paid and / or unpaid leave arrangements with the employee.
Employers are advised to be reasonable where employees are struggling to return to the UK as a result of unexpected travel disruption, and to consider alternative arrangements that might be put in place.
One of the obvious and most straight forward solutions is to approve use of any of the employee’s remaining annual leave or any Time Off In Lieu (TOIL) that they have ‘banked’.
If the employee is not in agreement with using unused annual leave, technically you could force the employee to take the additional time as annual leave, but you have to give at least double the amount of notice as the amount of leave you need them to take, for example, that would be 4 days’ notice for 2 days’ annual leave, which is unlikely to be plausible in an emergency, stranded scenario.
If the employee is willing and able to operate from where they are, for example they have their laptop with them, you may be able to agree for them to work on a remote basis until they can return home.
If the employee refuses to use their annual leave, or if they have no more annual leave allocation that could be taken, you could allow them to take the time off as unpaid leave.
If an employee has travelled abroad for work and is unable to return as planned, it is more likely that they should expect to continue to be paid during the delayed period, provided they can work adequately on a remote basis.
Keep in contact
Keeping in touch with your employees is encouraged in situations involving travel disruption.
In preparation for the holiday season, employers should brief their workforce on what is expected of them in the event they are unable to come into work as planned due to travel issues. This should include the employees’ duty to inform their employers as soon as possible about any issues they are facing with their travel plans that could impact their ability to return to work on time. Also detail the implications of failing to notify or update or agree alternative arrangements, such as being considered to be absent without leave, potentially resulting in disciplinary action.
It is also helpful to state the position on pay during any period of unplanned absence because of travel disruption.
Helping the employee
You should remember that the current travel disruption is not the employee’s fault. Taking a supportive stance can help to ease the employee’s stress given the circumstances.
You should respond in a timely manner to any communications from the stranded employee and quickly come to an agreement as to how you will deal with the situation, for example by authorising additional annual leave or approving a brief period of unpaid leave.
Ask how they are and how they are managing with new travel plans. Many airlines in particular are failing to provide much assistance or information to stranded passengers, so it helps not to be too impatient or demanding if the employee is unable to give many specifics. You should, however, emphasise the importance of keeping you updated to allow you to deal with arrangements while they are absent and potentially assure the employee that their workload is being dealt with.
Consider also if the employee is struggling financially. If they are personally having to purchase new tickets or accommodation, you may consider offering a loan to cover the costs. Any such loan would first need to have terms agreed, including repayments and an agreement would need to be signed by the employee in their return before any deductions could be made from their wage.
Cancelled holidays
Rather than being stranded, other employees may find their overseas travel has been cancelled before they are due to fly off, or even get to the airport.
Employers should have policies in place specifically dealing with holiday requests, in addition to contractual provisions, which should be followed.
Generally speaking, employers are not obliged to accept the cancellation of annual leave, unless the employee has a contractual right to cancel.
If the decision is discretionary for you as the employer, you should consider all the circumstances, including the requirements of the organisation and whether it would be possible for the employee to take the time off later in the year. Again, it is beneficial for employers to take a reasonable and pragmatic approach: if agreeing to the cancellation would not be disruptive, it would generally be better for employee relations to allow it on a goodwill basis. Holiday requests can be refused it the employer has fair business reasons, such as operational disruption, or if several employees in the same department submit holiday requests that generally cover the same period of time, in which case you may choose to approve some requests—typically on a first come, first served basis— while declining others because granting all of them would negatively impact operations.
In some cases, where refusing the cancellation would seriously undermine trust and confidence, an employee could potentially resign and claim constructive dismissal. It could even be viewed as discrimination to be too rigid if the travel is connected with an individual’s national origins.
Where employees who have cancelled their holiday want to book again for later in the year, they should give at least the minimum required period of notice, ie twice as much notice as the number of holiday days they are requesting. They should also follow the correct process to request the time off work. If the employee fails to meet these requirements, the employer can reject the holiday request.
Workers affected by domestic travel issues
As set out above for those employees who are stranded abroad, if staff are unable to get to work because of domestic travel issues (for instance the rail strikes or more generally, the cost-of-living crisis) then, unless alternative working arrangements can be agreed, they have no right to pay for any period where they are unable to get to work.
Employers should again be pragmatic and reasonable in their approach to domestic travel issues. Similar arrangements might be made for those stranded abroad in terms of working remotely for a limited period during travel disruption. More generally, employers might want to consider the flexible and/or hybrid working arrangements they have in place to try to help overcome the issues associated with fuel and general living costs rising. If travel disruption is making it particularly difficult for an employee to attend work due to a disability, then it may well be a reasonable adjustment to facilitate home-working if this would be practical.
Ultimately, employers and employees alike are going to have to adapt to unprecedent disruption in the travel industry. Some degree of flexibility and reasonableness will be required by all parties until the issues the travel industry is facing are resolved.
Need assistance?
DavidsonMorris’ employment lawyers support employers with all aspects of workforce management, including queries relating to holidays and time off work. For guidance on a specific issue, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
