As the ash clouds from the Icelandic volcano slowly disperse, the rail, road and sea ferry industries have been working at full steam (pun intended) to take advantage of the extra business. This means that employees are suddenly being asked to work greatly extended hours with inevitable legal implications under current employment law.
If employees are asked to work in excess of their contracted hours, they can simply refuse to do so, and their employer can’t do much about it. Changing contract terms without employee consent could entitle employees to resign and claim constructive unfair dismissal or wrongful dismissal for breach of contract.
Offering impromptu financial incentives, such as overtime and bonus payments, is the immediate and obvious practical way to get employee ‘buy-in’ to consent to the increased working hours. However, with some forward planning, it is possible for employers to include contractual provisions to cover a sudden, unexpected requirement for extra work in the future.
For employees who are asked to work more than the average 48-hour week and who have not already opted out of the Working Time Regulations, employers must keep careful records to be able to calculate just how may hours are being worked. As the average for the Working Time Regulations is calculated over a 17-week period (and can be argued to be over a 26 week period in this special situation), employers are unlikely to be caught for claims on account of breaching the Regulations by the current volcano situation but may still be required to produce their records in such circumstances.
Again, forward planning may include asking employees to opt out of the Regulations at some point in the future but they cannot be obliged to do so.
Employers must also be mindful of Health and Safety implications for over-worked employees and must ensure that, regardless of the over-time worked, employees are afforded all statutory rest breaks including the minimum provided in their existing contract of employment which, for most employees, must not be less than 20 minutes rest every 6 hours, 11 hours rest in every 24 hour period, and either 24 hours rest each week or 48 hours rest each fortnight. As breaches of health and safety laws can result in personal criminal liability for employers it is vital that, despite the extra hours required, employee’s health and safety is never put at risk.
What about the legal position of employers whose staff are stuck sunning themselves in the Canaries and are unable to get to work?
Employers who deduct pay or insist the time is taken as extra holiday, may receive claims for unlawful deductions from wages.
Employers must try to avoid using their discretion or making decisions on a case-by-case basis as claims may arise for indirect discrimination if decisions are arbitrary or applied inconsistently.
Employers therefore should ensure that they use reasonable and clear communication with those employees burning the midnight oil and those in far off lands buying extra tanning oil.
It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.
Victoria Russell is an Employment Law Solicitor at Silverman Sherliker
