The recent eruption of Eyjafjallajokull, Iceland’s hitherto unheard of (and unpronounceable) volcano, spewing an ash cloud that caused air travel to grind to a halt has raised important unemployment issues for those affected by the travel chaos. Since the occurrence I have been asked constantly to advise on two issues, firstly, whether an employer is obliged to pay an employee who was absent from work while stranded abroad and, secondly, whether the extra days lost in this way should count towards an employee’s paid holiday allowance.
Much depends on the provisions contained in the employee’s employment contract. While not all employees have formal contracts of employment, every employer is obliged in Law to give written details of the terms and conditions of employment to each employee and failure to do so can cost the employer. If the employment contract does not provide for the payment of wages in the event of an “act of God”, as such has happened here, then there generally is no obligation on an employer to pay an employee during such an absence, unless the employee can still work from abroad with the use, for instance, of computer technology. Generally the employee, to be paid, must be available to work for the employer. An interesting situation arises where the employee finds himself abroad in the course of his employment during such an emergency. He will obviously argue that he would not be in this situation were it not for the fact that he was there for the purposes of his employment. And, again, the vital necessity of a proper contract of employment is highlighted here.
The holiday situation is more complicated. As the employer can determine the time annual leave is taken but must give at least one month’s notice to the employee before the leave is due to commence, an employee who has used up his/her annual allowance, but due to the crisis is detained abroad, through no fault of their own, can claim that any extra days thereby incurred should not count towards their paid holiday allowance.
As the conditions giving rise to this crisis were unique every case should be dealt with on its own merits and Employers should be flexible with employees both with regard to lost wages and lost time and it is, of course, legally open to both parties to agree that lost time or days can be made up at a later time or other arrangements be put in place. What is important is that an employer avoids any situation where any unlawful deductions are made from an employee’s wages. As we are told to expect further eruptions employers should look to their contracts of employment to minimise the effect of any future disruption.
-Michael Fitzpatrick
Representing you…Protecting you
