The closure of European airspace on 15 April 2010, following the eruption of Iceland's Eyjafjallajokull volcano triggered 6 days of travel chaos with tens of thousands stranded whilst on holiday or business trips.

The dilemma for employers is how to deal with the disruption in staff levels and, more significantly, how to treat the period during which employees were unable, through no fault of their own, to return from annual leave or business trips.

UAE Federal Law No 8 of 1980 on the Regulation of Labour Relations (as amended) (Labour Law) is silent on this issue. Therefore, the provisions of UAE Federal Law No 5 of 1985 (as amended) (Civil Code) apply as the Civil Code applies to civil transactions and will apply to labour issues where the Labour Law is silent.

Articles 273 and 287 of the Civil Code cover force majeure. Article 273 of the Civil Code states that if force majeure interrupts the performance of a contract such as to make it impossible for the contract to be performed, either wholly or in part, then the contract, or the relevant part of the contract, is extinguished or may be treated as suspended. Article 287 of the Civil Code states that if a party to a contract can demonstrate that the other party's loss arose out of an external cause in which he played no part such as a natural disaster, unavoidable accident, force majeure, act of a third party, or act of the person suffering loss, he shall not be bound to make good the loss in the absence of a legal provision or agreement to the contrary.

In an employment context, it is the employee's responsibility to turn up for work. Failure to do so could mean that the employer could terminate the employment without notice under article 120 of the Labour Law. Where the employee is temporarily unable to attend work owing to a natural disaster, it is arguable that the employment contract is suspended, as it cannot be performed by the employee. The employee could not be entitled to payment during this period.

However, the key for employers when dealing with the disruption caused by the volcanic ash is to enter into a dialogue with employees as to how to treat the unforeseen absence. In many instances this will depend on how long the extended absence was and the business options available to the organisation (taking into account its size, resources, and number of employees). Employers should also ask employees to keep them updated on a daily basis as to when they can be expected to return to work and the reasonable timescales taking into account business commitments and appointments. Reallocation of work or key accounts should also be discussed as necessary.

Potential arrangements to deal with these events could include:

  • Treating the extended period of absence as special leave and paying the employee for this period on the basis that this was an exceptional situation;
  • Asking the employee to take the additional days of absence as part of their annual leave entitlement. Where an employee has exhausted his accrued leave or the leave is insufficient to cover the extra days he could be asked to use up some of the following leave year's entitlement;
  • Treating the leave as unpaid;
  • Asking the employee to work remotely from whichever location he is in (using business centre facilities if necessary), such an arrangement would be more feasible where the organisation has an office accessible to the employee's temporary location.

In making arrangements employers should be wary of adopting an approach which might adversely affect staff morale. A fair and consistent approach should be adopted but employees' periods of absence may vary and a case by case approach could be appropriate.

Volcanic ash disruption may be exceptional but it is more likely than not that employers' will have to deal with unexpected and significant disruptions due to natural disasters in the years to come; a flu pandemic or severe weather conditions being examples. Employers are therefore advised to have policies in place to deal with such disruptions thereby providing clarity for both the business and its staff. A final note regarding business interruption insurance which is that such insurance is unlikely to cover these types of interruptions as acts of God are excluded and is dependent on a covered physical loss having occurred.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.