Let it snow…

The snowfall this weekend in many parts of the country are causing much disruption with travel issues and school closures. It is helpful if businesses have given consideration in advance to the impact that adverse weather can have on the ability of workers to attend the workplace as a consequence of travel disruption and where there has been no such advance planning decisions may need to be taken on certain issues such as the pay of employees who are unable to attend work.

Businesses should develop a strategy for dealing with such disruption. Consideration needs to be given as to payment for the absence, homeworking or attendance at a different workplace and how contact should be maintained.

Are employees entitled to pay if they are unable to attend work due to the weather?

The answer depends on the employee’s express and contractual rights and the right not to suffer unlawful deductions from wages. There will be no unlawful deduction is an employee cannot show that they were entitled to the pay in the first place. This will depend on whether there is a contractual right for the employee to be paid even if they cannot attend work. Express rights can be found in the contract of employment or the staff handback if incorporated into the contract, and collective agreement and from custom and practice.

If there is no contractual provision and no evidence of custom and practice then the basic contractual position is that wages are not payable. The position with salaried workers is that if they cannot get to work they are not “ready” to work and therefore not entitled to be paid. However, whilst this is the practice that is commonly adopted by businesses, there is some case law that suggests a contrary position. It would appear that the tribunals are prepared to examine all the circumstances to establish whether a term can be implied. In order to avoid this uncertainty and challenge employers are best advised to make clear contractual provision as to what employee entitlement is in such circumstances.

However there are a number of business reasons why a business might want to pay employees in the event of bad weather preventing attendance – employee relations, bad publicity, and to avoid abuse of sick pay.

What are the alternatives?

Paid annual leave – employees could be offered the option of taking the absence as paid annual leave, assuming they have sufficient entitlement remaining. However, it is difficult to force an employee to take annual leave as they may not have sufficient remaining and there will be insufficient time available to enable the employer to comply with the notice requirements of the Working Time Regulations 1999.

Making up the hours – if employees don’t want to take annual leave or remain unpaid, it may be possible depending on the business to make up the hours by agreement.

Time off for dependants – where weather forces closure of schools and nursery, if employees need time off to make alternative arrangements but don’t want to take annual leave, they are entitled to exercise the statutory right to reasonable unpaid leave and cannot be subjected to a detriment for taking such leave. Some employers may have in place a Dependant Care Leave policy, which may provide for some paid leave.

Homeworking or attendance at an alternative closer workplace – this may be an option for some employers, where employees can undertake some work from home. This day and age modern technology in certain sectors facilitates this.

Practical steps for businesses

  • To avoid the legal uncertainly review contracts to specifically authorise deductions if this is the preferred option.
  • Implement an Adverse Weather Policy setting out how the business will deal with this situation.
  • Publicise and implement the policy before any likely period of disruption.
  • Consider home based working or from an alternative work place.
  • Decide upon and be clear on whether any period of absence will be paid.
  • Consider any health and safety implications.

Should you require any further information concerning the issues raised then please contact Sarah Turner on sarah@legatuslaw.com / 0113 302 1330 or 020 787 32279.