When acts of god keep staff from work, how should employers handle pay, asks Liz Morrell

As those retail staff caught up in the volcanic ash flight ban returned to work last month a prickly issue once again rose its head for retail HR directors - how and when to pay absent staff.

At Sainsbury’s the retailer chose not to pay staff who were caught abroad but it said it would allow staff to make up the time instead. Marks & Spencer took a more tolerant view, saying no employees would be asked to take either unpaid leave or additional holiday if they had got caught up in the chaos. Tesco said it would pay on a case-by-case basis.

Mike Emmott, employee relations adviser at the Chartered Institute of Personnel and Development, says the legal requirement of a retailer is clear. “In law there is a fairly clear answer in that it depends on the employment contract but unless it says something specific the usual policy is: no work no pay,” he says.

Stuart McBride, head of employment law at law firm TLT, agrees. “The usual starting point is that where people are stranded abroad following a planned holiday there is no entitlement to be paid, unless an individual’s employment contract specifically says otherwise, or the custom and practice in the workplace implies otherwise,” he says.

However, for retail staff on business the situation is different. “Then the retailer owes them a duty of care and the question of them not being paid shouldn’t arise because technically they are at work,” says Emmott.

Retail staff may have felt aggrieved for having to take time off for a situation they had no control over, but for retailers it was the second time this year that natural forces prevented staff getting to work.

Heavy snow at the start of 2010 also forced store closures and this means retailers may have already set a precedent. “If a retailer allowed staff paid absence when they were unable to get into work during the snowfall earlier this year, then it might be reasonable to expect the same practice to apply following the volcanic eruption,” says McBride.

M&S asked staff to get to alternative stores if possible during the snow or to try to rearrange working hours where possible. “In the vast majority of cases it was managed through those processes, the next measure is we would ask people to take it as annual leave,” says a spokeswoman.

However, she says the retailer realised that the volcano incident was an exceptional circumstance.

Of course, normally absences are for more everyday reasons - such as sick child - when staff are normally asked to work alternative hours. “Staff paid on an hourly basis may be offered the option to make up time. Employers may also offer affected staff the option to take any unexpected absences out of their holiday allowance, so they at least get paid during the period of their absence. However, unless the contract allows the employer to stipulate when holiday is taken, it is unlikely that employers will be able insist on this,” says McBride.

Both retailers and their staff will be hoping for no more acts of god.