Thomas Cook collapse: what should we do about stranded employees?
The collapse of Thomas Cook announced officially this morning has left hundreds of thousands of holiday makers stranded across the world. What should you do if you are one of the many employers across the UK who will be affected by staff not being able to make it back to work on time?
Is there a travel disruption policy?
Firstly, check whether there is a policy already in place on handling travel disruption (this may well be in a combined policy dealing with adverse weather).
As well as providing guidance on contacting and managing employees and whether they will be paid, the policy might also deal with how the business will operate if a number of staff are absent; and the roles and responsibilities of managers in this situation.
Should we get in touch with stranded employees?
Consider contacting all employees currently on annual leave to check if they are impacted by the collapse, if you have the means to do so. Ascertain as much information as possible to allow you to discuss the situation with each employee as it affects them personally. You could agree the best method of staying in touch.
You may also wish to direct all employees, whether on annual leave or not, to the advice on the Government and Civil Aviation Authority’s dedicated Thomas Cook website.
Do we have to pay employees who cannot make it to work?
If you are able to contact your affected employees, or following their return to work, the first question you are likely to be asked is whether they will be paid while they remain stranded abroad.
Ultimately, it depends. There is a widespread view that employees are not entitled to be paid if they cannot get to work due to travel disruption. However, the law is not actually clear. Think about the following points:
If an employee is on a business trip they should be paid throughout their absence, and you should cover any necessary additional expenses.
Is there a contractual right to pay?
It is unlikely, but there might be a contractual right to be paid for time spent away from work even if it is for a reason outwith the employee’s control. Is there an express term in the contract, a collective agreement, or a contractual policy? Or is there an implied ‘custom and practice’ of paying in these circumstances which employees could rely on? For example, the company might have automatically paid employees facing the same situation before – such as during the Icelandic ash cloud.
Is there a non-contractual policy?
Alternatively, you might have a non-contractual HR policy. If this provides for payment, in the interests of good employee relations, you will normally want to abide by it.
None of the above
If none of the above apply, you can opt to pay as normal, pay for a limited number of days, or not pay at all.
If you do pay when you’re not required to, avoid setting a precedent for the future by making it clear in writing that it is a gesture of goodwill and decisions are made case-by-case.
If you decide not to pay, bear in mind that doing so could result in negative publicity and a detrimental impact on staff morale. Also, there is a small risk that an employee might challenge the non-payment in a tribunal. In the past, such a challenge would have been unlikely given the widespread belief that employees were not entitled to pay in this situation. However, high profile criticism of non-payment of employees unable to travel to work during the severe weather last winter may have increased the likelihood of employees attempting a tribunal claim.
What are the alternatives to paying employees who cannot make it to work?
If you decide not to pay at all you can offer employees alternatives, such as taking additional annual leave to cover the period they are stranded, using time off in lieu (if you have such a scheme); or making up the hours at another time. The latter is unlikely to be appropriate where employees are stranded for a number of days or more. Depending on what equipment the employee has with them and the type of work they carry out, some employers might also be able to offer the option of working remotely, potentially at an overseas office.
If an employee doesn’t want to take annual leave, you can only force them to use their statutory annual leave if you are able to give them sufficient notice. The notice must be at least twice the length of the period of leave that the employee is being ordered to take.
We would always recommend having an adverse weather / travel disruption policy in place to assist in these situations. Brodies Workbox users can access our example Adverse Weather / Travel Disruption Policy.
If you need to discuss how to approach this issue just now, please speak to your usual Brodies contact.
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