The recent disruption of air travel in Europe caused by volcanic ash and its possible reoccurrence raises a number of issues for employers with employees travelling on holiday or away on business.

So, what are the rights of the employee and employer in these circumstances?

Employees stranded on holiday
Does the employer have to pay the employee for the additional time off?

The basic principle governing the employer/employee relationship is that, in return for work, the employee is entitled to be paid by the employer.

While any delay in the employee’s return may not be the employee’s fault, equally it is not the employer’s fault.

The fairest way of dealing with the matter is to allow the employee to use annual leave entitlement (assuming the employee has not used up all the entitlement) and thereby the employee suffers no loss in pay. Alternatively, if the employee does not want to use up his/her annual leave entitlement, the additional time can be regarded as unpaid leave with appropriate adjustment to his/her salary.

A word of caution, the employer should review the employee’s contract and/or relevant policy to ensure that there are no strange terms that would entitle the employee to payment.

Finally, employees should be encouraged to take out a suitable insurance policy that would reimburse them if they lost pay as a result of the unanticipated leave.

Can an employee take the time as annual leave?

Yes, assuming the employee has more annual leave to take in the holiday year. However, if the employee does not want to use up his/her annual leave entitlement, he/she can opt to treat the time off as unpaid leave, with the appropriate salary adjustments.

Can an employer discipline an employee who does not return to work on time?

The fact that an employee cannot return to work because of the flight restrictions will not be reason to discipline an employee.  However, disciplinary issues may arise, for example, if the employees fail to contact the employer, keep the employer updated about developments or does not make a genuine effort to get home.

What efforts does the employee have to make to get home?

The key word is “reasonable” efforts even if that means additional cost to the employee. Take for example a situation where the airline on which the employee is booked only flies to that destination once a week. It would not be reasonable for the employee to wait a week when there are daily flights out with other airlines from which the employee could easily get a connection to home. On the other hand, it would not be reasonable to expect the employee to hire a private jet to bring him/her home.

If the employee incurs additional cost in getting home so that they can return to work on time, does the employer have to pay the additional cost?

No. Again, employees should be encouraged to insure against this additional cost.

Employee’s holidays delayed or cancelled
Is the employee entitled to take additional day’s holiday?

If the holiday flight is cancelled, the employee has to choose whether to return to work or use the days booked and do something else e.g. holidaying at home.

If the flight is delayed a few days, can the employee make up for the days lost and extend the leave period?

Time off, including additional time off, has to be agreed with the employer. The employee has no automatic right to extend his/her holidays.

What happens if the holiday is postponed but the new dates don’t suit the employer?

This situation is essentially no different to any request for leave i.e. it has to be agreed with the employer. Employees should not re-book assuming that they do not need their employer’s permission. However, obviously the request should be examined sympathetically.    
 
Employees stranded on business trips in these circumstances
Does the employer have to pay the employee’s expenses?

There is a fundamental difference with an employee travelling for themselves e.g. vacation and travelling for their employer e.g. business trip.

When travelling for the employer, the rules are reversed and the default rule is that the employer is responsible for any expenses incurred if an employee is stranded. While being stranded is neither the fault of the employer nor the employee, nevertheless the employee is on the business of the employer and the employer is obliged to pay any reasonable expenses.

What efforts does the employer have to make to get the employee home?

The employer has to make reasonable efforts to get the employee home. “Reasonable” in this context does not mean waiting for a week before the next low fare airline flies out of that location. In such circumstances it would be reasonable for the employee to require the employer to book the employee on the next scheduled airline out, even if there was a significant premium for such a seat. Requiring an employee to remain in the location for a few days would probably be okay unless it meant that the employee lost his/her weekend. If an employee was forced to be away for a weekend, then the employer should compensate the employee with a compensatory break on his/her return or as soon as reasonably possible.

Of course, because the employee is effectively on the employer’s time while awaiting their departure, it would be reasonable to require the employee to do work for the employer pending their return if practicable.

Obviously, hotel expenses and meals etc would have to be paid for by the employer and employees should be reminded to keep vouchers for all reasonable expense incurred.

Practical points to keep in mind

• ensure consistency of treatment of employees (or that differences can be objectively justified).
• consider whether any particular treatment of employees (e.g., payment of salary and expenses) has insurance implications i.e. if the employee has an insurance policy that covers the loss, payment of the loss by the employer may allow the insurance company to avoid the claim on the basis of no loss suffered by the employee. 
• consider whether it is worthwhile extending current policies to ensure that future events of this nature are clearly covered and ensure employees are made aware of the employers policy covering these circumstances

For further information please contact Aisling Butler ([email protected] +353 1 6395 179) who will be glad to answer any further queries you may have.