With concerns mounting over a possible strike by fuel tanker drivers, what can employers do if the disruption to petrol supplies across the country impacts on their business?
Employees unable to attend work
Employers will need to understand their rights and obligations where employees are unable to attend work due to fuel shortage and in particular whether they will have to pay employees who fail to attend work because of transport problems.
The position depends on the circumstances of each individual case and the specific terms and conditions of the relevant contract of employment.
An employer only has the right to withhold pay if an employee's absence is "unauthorised". Therefore an employer needs to consider carefully whether the terms of its employment contracts make it clear that absence in such circumstances is not an authorised absence or whether the absence has been authorised in some other way, for example, expressly by a manager?
Whilst unauthorised absence may be grounds for disciplinary action, it must be remembered that employees have statutory protection against any unauthorised deduction being made from their wages.
A deduction from wages is unauthorised unless the employer has a power under the contract to deduct pay in these circumstances.
A more practical way around the issue of absence due to any fuel shortage would be for the employer to consider alternatives to withholding pay, such as:
- agreeing with the employee that they take the time off as paid holiday
- allowing the employee to make up the time within a specified timescale
- where the facilities exist, allowing the employee to work from home
It is arguable whether an employer has the right to compel the use of holiday entitlement after the event - again this will depend on the specific contractual terms. If an employer wishes to deduct days from an employee's holiday entitlement, this should be communicated to staff at the earliest opportunity.
Given that the fuel strike is an event beyond the control of the employees, employers should be wary of dealing with staff too harshly; such treatment could be a breach of the duty to maintain "trust and confidence" with employees, which would allow an employee, if they wished, to resign and claim constructive dismissal.
Varying working arrangements
In certain industries, such as logistics, the issue for employers will extend beyond whether or not employees are able to attend work to whether the business will be able to function as normal. An employer may wish to temporarily vary the hours or duties of certain employees, such as drivers.
An employer will need to consider whether or not the contract provides for temporary variations to an employee's terms and conditions of employment. In the unlikely event that it does the employer will need to secure the individual's agreement to any such change and the best way to do this would be through early, open and thorough consultation with employees and their representatives.
Lay offs/Short-time working
The fuel strike may mean that for a period of time an employer has a reduced need for employees to carry out work of a particular kind and therefore it wishes to consider laying employees off (providing no work and no pay) or imposing short-time working (a reduction in hours and pay). However, this will only be possible where the contract of employment allows an employer to impose such changes.
Imposing such changes without the contractual right to do so (or without the employee's agreement) would be a breach of an employee's contract entitling them to resign and claim constructive dismissal if they wished.
In the event that the proposed fuel strike does impact upon employers, it is important that all policies and rules should be applied consistently and fairly across the workforce.
In light of the potential disruption, employers may wish to communicate their proposals for dealing with any issues that may arise in advance of the strike so that all parties know where they stand.