While news of the shock collapse of Thomas Cook and customer repatriation and the fate of the company’s 21,000 stoic employees has been taking up media coverage, little thought has been given to the impact on holidaymakers’ jobs back home.
Although most holidaymakers have now managed to return home, a large proportion of the 150,000 Thomas Cook customers that were stranded overseas may have temporarily failed to return to work on time, which raises questions on their rights to be paid and their employers’ obligations.
So, in situations like these, what options do employers have?
Absent without leave
As an employer, your first port of call is to check company policy, if there is one, on dealing with absence due to travel disruption, which may include industrial action, holiday company liquidation and adverse weather, for example.
Whether or not there is a policy, it is good practice to try to contact employees who may be affected to avoid any unauthorised absence scenarios: technically, absence without prior approval of an employer amounts to unauthorised absence, which could lead to disciplinary action – an extremely harsh outcome given that the absence is not the fault of the employee. However, a quick email or phone call to the stranded employee will count as authorisation.
Of course, the burning question of any worker absent through no fault of their own is whether they will be paid. There are several factors to consider.
To pay or not to pay
In the absence of any contract terms to the contrary, there is no legal requirement to pay an employee who cannot get to work due to travel disruption. This is because employers are only obliged to pay those who are ready, willing and available for work.
This rule does not apply to employees working overseas on business, and moreover, any additional expenses incurred as a result of travel disruption must be paid for by the employer.
However, be wary of employees relying on implied terms in any company policy or past practice: if you have paid staff in the past who have failed to come in due to the snow, for example, then employees may seek to rely on this as being your established approach.
Despite the above, employers may still decide to pay or part-pay employees in these scenarios for the purposes of good industrial relations.
Staff morale can be severely damaged by penalising workers who are absent due to circumstances outside of their control, especially when they are already out of pocket due to a defunct airline, for example.
For larger companies, there is also reputational damage to consider: in 2010, both Sainsbury’s and Tesco were widely criticised after announcing that employees stranded by the Icelandic volcanic ash cloud might not be paid.
If paid leave is too expensive, alternative solutions should be offered. These could include treating the absence as additional holiday (if there is sufficient annual leave remaining), making up the lost time when an employee returns to work, taking the time as unpaid leave, or where possible, working remotely.
So, with climate change wreaking havoc on weather systems, and a growing trend in industrial action and financial woes within the travel industry, employers would be wise to implement a travel disruption policy, if they haven’t already. Any such policy should be accessible to all employees, so everyone is clear where they stand. Especially if it ends up being in an airport queue, miles from home.
If you require assistance with any of the above matters, please contact David Greenhalgh of the Joelson employment team on +44 (0)20 7580 5721.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
“Entrepreneurial and responsive, key features when working with Asos. Joelson deliver what we value in terms of legal services – a partner who can respond, both reactively and proactively, to our ever changing business requirements.”
International Director ASOS plc