HCR Law Events

15 June 2022

“What will they say at work?” Dealing with employees stranded abroad

The world has been left with many unwelcome reminders of the Covid-19 pandemic; long-covid, PPE bonfires and celebrity charity songs to name but a few. Most recently, its effects have been keenly felt by holiday makers whose flights have been cancelled during the Easter holidays, with some airlines citing an inability to recruit sufficient staff to replace those lost during the pandemic. With similar disruption expected over the Summer, stranded employees pose significant HR issues for employers.

If an employee fails to turn up to work, this will ordinarily represent a breach of contract and a disciplinary issue. However, assuming that the employee is genuinely stranded in foreign climes due to reasons out of their control, it would be unreasonable for an employer to instigate disciplinary action. Instead, an employer could consider taking one of the following steps:

  • Allow the employee to take any extra time off as holiday. Whilst the ordinary rules on taking holiday are that an employee must give twice as much notice as the amount of holiday they are seeking to take (i.e., two days’ notice for a one-day holiday), and the employer has the right to refuse the taking of holiday on specific days, it may be a reasonable compromise to allow an extension of holiday until they can get back to work.
  • If the employee has exhausted their holiday pay, or otherwise does not want to use their remaining holiday entitlement, the employee can take unpaid leave. This would need to be agreed by both employer and employee and this agreement should be documented in writing for completeness.
  • Consider whether the employee can work remotely. It goes without saying that the employer should firstly ensure they are confident that the employee has the proper equipment, means and capability of carrying out their work from abroad.

Most reasonable employers and employees will be able to find an amicable solution to a situation that is out of their control. However, there may be occasions where an employer might be justified in taking disciplinary action.

For example, an employee who does not advise their employer of their marooning until the day they are due back at work, or who travels to another country knowing that their flight back has already been cancelled, could be argued to have acted unreasonably in continuing with their travel plans.

Disciplinary action could especially be justified if the employee’s absence coincides with a particularly busy working time for the employer.

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About the Author
Michael Stokes, Partner, Head of Employment and Immigration Team

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