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Your employee stranded on holiday is a victim of the Thomas Cook collapse.  Should you just accept it? Can you stop their pay, discipline, or dismiss them? What are your options?

Accept it

Issues of compassion arise. Stranded employees will have extra costs to meet, at least in the short term.

The way in which you treat this employee will be watched by other employees. If you expect loyalty from your employees, then you need to consider loyalty towards them. In very itinerant work this might be only a minor consideration, in others it could be critical.

Nationally there may be other “norms” set by this crisis, so these might be a consideration too.

Stop the stranded employee’s pay

Hesitate to do this; or at least consider other options first.

One option may be to ask (or even oblige) the employee to take the time as more holiday. This assumes they have such entitlement left.

The employee may be able to make the time up later, once they have returned.

Some employees may be able to do work remotely. However, they are likely to be suffering stress and disruption. So this may be too much to reasonably expect. Nonetheless if an employee does undertake some work, then the question of mutual loyalty must arise.

You need to consult any adverse circumstances policy that you might already have. For example what do you do if an employee cannot attend work on account of snow or floods? You need to be consistent in what you do.

Irrespective of any policy, to lose income at the same time as being stranded abroad, will only add to that employee’s stress. So withholding pay begins to raise questions of a reasonable duty of care towards an employee. Conceivably the employee might claim unlawful deduction of wages or even constructive dismissal. While either may not succeed, they could still embroil you in defending your action before an Employment Tribunal.

All this said, you have a business to run and an absent employee can add to your costs and affect cash flow. There will be a balance to be struck and the resources of small businesses are very different from those of multi-nationals. In the end there is no direct legal obligation to pay the stranded employee.

Dismissal

Employees with two or more years’ service have unfair dismissal rights. That means you would need a fair reason for any dismissal and you would need to follow a fair process. Furthermore, employers are expected to allow a significant period of leave before contemplating dismissal. Maternity and paternity leave are examples. A two- or three-week extension to a “holiday”, in the current circumstances, is well outside the employee’s control. Therefore, any form of discipline is inappropriate and could even result in a constructive dismissal claim. As for deliberate dismissal, this would almost certainly result in an Employment Tribunal claim, just as a dismissal for 3 weeks sickness would.

However, that said, employees with less than two years’ service cannot bring an unfair dismissal claim. A failure to attend work is a breach of contract. Technically that is a valid (not necessarily a fair) reason for dismissal. This means it is difficult to see how an employee could take you to an Employment Tribunal. But what would the point of dismissing the employee be? You would be obliged to pay one week’s, or even one month’s, or more’s notice and the employee could have returned within that time. Furthermore, the cost of recruiting a replacement employee is by no means negligible.

Summary

I submit that you should accept the employee is stranded for no fault of their own and seek options to avoid stopping their pay. Dismissing the stranded employee would be pointless and, in many circumstances, would land you in an Employment Tribunal.

Malcolm Martin FCIPD

Author Human Resource Practice

Blogs are for general guidance and are not an authoritative statement of the law.

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