Response to government consultation on holiday pay following the Supreme Court judgement
This article outlines key information relating to amendments to the law on holiday pay, TUPE and working time.Read more
Where employees are abroad and their flight is cancelled or subject to lengthy delays, that may lead to them having issues with returning to work at the end of a period of pre-booked annual leave as they might have otherwise planned.
In these circumstances, 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, unless their contract states otherwise (which is extremely rare nowadays).
The first step for employers to take, therefore, is to look at what the contract of employment says. Employers are advised to take a pragmatic and reasonable approach where employees are struggling to return to the UK as a result of unexpected travel disruption.
Employers should consider what alternative arrangements might be put in place. It may be, for example, that there are some circumstances where the employee can work remotely and employers might wish to agree this directly with staff for a limited period until they are otherwise able to get back into the workplace. For those employees who aren’t able to work remotely, however, employers might wish to consider allowing employees to extend periods of paid annual leave or agreeing that employees can take periods of limited unpaid leave until they are able to get back to work.
Effective communication is encouraged in situations involving travel disruption. As summer starts to get into full swing, employers might wish to look at issuing internal memos around what employees should do if they do find themselves stranded abroad. These memos should also set expectations around pay where employees are otherwise unable to work.
Employees themselves should be open and honest with their employers and let them know as soon as possible if they do think that there is going to be an issue with getting back to work due to travel disruption. If employees fail to report the reason for their absence or fail to agree alternative arrangements with their employer, then they will be deemed to be absent without leave and employers may then look to take some sort of disciplinary action against them.
At the other end of the spectrum, there may be employees whose plans to go abroad are cancelled before they even get to the airport in the UK.
Where this happens, employers are not, strictly speaking, obliged to accept the cancellation of annual leave. Employers themselves may have policies or practices around cancelling annual leave and these should be referred to and followed. Again, though, it would be beneficial for employers to take a reasonable and pragmatic approach to this situation, otherwise they risk souring the employment relationship. In cases where this would seriously undermine trust and confidence an employee can 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.
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 impending 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 have settled down.
For legal advice on the best approach towards employee rights, benefits, contracts, pay, and more, contact our Employment team on 01332 226 155 or fill in the form below.
Scroll to next section
Scroll back to the top