It is unfortunate to see air travel again disrupted by the effect of another volcanic eruption in Iceland. This potentially raises employment law implications for employers if employees are stranded abroad and unable to return to work from holiday.

The following guidance is based on an article I did for the Hr Network (Scotland) website at the time of the previous volcanic eruption.

If an employee is unable to return to work from holiday due to travel disruption, they cannot be fairly disciplined for failing to attend. However, the question of whether they have to be paid in their absence can be a tricky one. Although the situation regarding the volcano is highly unusual it is, to a large extent, analogous with the situation employers were faced with in December and January when many employees were unable to attend work due to the heavy snow. The main difference is that the snow led to some workplaces being closed completely which is not the case here.

An employer who does not attend work is arguably not fulfilling their contract to employment and, therefore, subject to any contractual term or policy which says otherwise, would not be entitled to be paid for any such absence. However, some employers, particularly those in the public sector and larger employers, may have policies dealing with inclement weather and employers should consider the terms of those policies and determine whether they can apply them in the current situation.

It is recommended that employers should do their best to communicate with employees stuck abroad with a view to establishing the situation and when they are likely to be in a position to return. On their return, if there is no set contractual term or policy to deal with the situation, employers may wish to attempt to agree that the employee takes the extra time off out of their holiday entitlement so that they get paid for it. It is unlikely though, in the absence of a contractual provision permitting it, that an employee can be compelled to do this retrospectively. As an alternative, the employer could attempt to agree with the employee that they make up the lost time up at a later date. If the employee refuses these options then it will be a question if determining whether the contract allows the employer to withhold the employee’s pay.

If an employer is minded to exercise its discretion and make payment for the absence without requiring the employee to make up the time or take the time off as holiday then whilst, on the face of it this may be good for employee relations, it could backfire if an employer acts inconsistently compared to how they treated employees unable to attend work due to the snow.

It is worth making the point that the position above is based on someone who is unable to return as a result of personal travel such as a holiday. If someone was abroad as a result of work and unable to return then the employer would require to continue to pay the employee in the usual way.

I’m due to fly out of Edinburgh airport next week so have my fingers crossed!