As significant snowfall is forecast for the UK in the next few days, we examine the potential legal issues where employees are unable to get to work due to bad weather.
Employers need to understand their rights and obligation where employees:
- are unable to get into work due to the bad weather
- they may be able to get into work but have to take the day off due to school/nursery closure
The position will very much depend on the circumstances of each case and in particular the terms and conditions of the relevant employee's contract of employment.
Do we have to pay employees who can't get into work?
The general bargain between any employer and employee is that the employee is obliged to turn up and work and the employer is obliged to provide work and pay the employee for the work they do.
Therefore, if an employee is ready and willing to work, but the employer is not in a position to provide work, for example, because the workplace is closed, then the employer should not be making any deductions from the employee's pay.
Conversely, where an employee does not fulfill their side of the employment bargain due to an unauthorised absence from work, then the starting position would be that the employer's obligation to pay them also falls away.
However, this general contractual position needs to be considered alongside the following:
- the statutory right not to suffer unlawful deductions from wages
- discrimination issues
- the statutory right to unpaid time off to deal with family emergencies
An employer will only have the right to withhold pay if an employee's absence is unauthorised. An employer therefore needs to consider carefully whether the terms of their employment contracts make it clear that absence due to bad weather is not an authorised absence or whether the absence has been authorized in some other way for example, expressly by a manager?
While an obviously 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 will be unauthorised unless the employer has a power under the contract to deduct pay in these circumstances (or the employee consents to such a deduction) which is probably unlikely).
What about employees with childcare commitments?
The reason for an employee's absence when the weather is bad may not be related to their physical inability to attend their place of work, but because schools and nurseries are shut and they cannot make alternative childcare arrangements at short notice.
Employees have the right to take unpaid time off for family emergencies to do with their dependants. However, it should be noted that this time is intended to allow alternative arrangements to be made - it is not a right to allow employees to stay away from work in order to care for their dependants indefinitely themselves.
However, employers also need to be aware that there could be potential sex discrimination issues if employees who are absent due to childcare issues are treated less favorably than those who are absent for other reasons. For example, if an employer decided to discipline all those who stayed at home to look after their children, but not others.
Notwithstanding the strict legal position set out above, an employer can always decide to exercise its discretion and pay employees for some or all of the days they cannot make it into work because of adverse weather conditions.
Clearly, there may be good employment relations reasons for doing so. However, it is very important that all employees are treated consistently in these circumstances in order to avoid discrimination claims.
In many instances a more practical way around the issue of absence due to adverse weather will be for an employer to consider alternatives to docking pay, such as:
- agreeing with the employee that they will take the time off as paid holiday
- allowing the employee to make up time within a specified time scale
- where the facilities exist, requiring the employee to work from home
It is arguable whether an employer has a right to compel the use of holiday entitlement after the event - again the position will depend on the contractual terms. Therefore, if an employer wishes to deduct days off due to adverse weather from an employee's annual leave entitlement, this should be communicated to staff at the earliest opportunity.
To avoid conflicts it is important that any such alternatives are communicated clearly and applied consistently to all staff.
Adverse weather policy
Good employment practice would be to make it clear to all employees what policy will be adopted regarding payment to non-attending employees and the use of holiday entitlement in the event of adverse weather.
Employers should consider introducing an adverse weather policy and ensuring that this is adequately communicated to all employees ahead of any further adverse weather conditions. Such a policy should clearly set out the employer's position and explain how it will handle absence related to bad weather.
Health and safety
Finally, it is worth remembering that employers have a duty of care concerning the health and safety of their employees, so they should avoid putting undue pressure on employees to attend work if this could result in them taking unnecessary risks to get in.
If the official advice is to stay at home unless the journey is essential, employers should not be asking individuals to get in regardless. There could be a potential liability for the employer if an employee suffered an injury after being pressurised into travelling by car or foot in dangerous conditions.
A balanced approach between encouraging employees to make all reasonable efforts to get to work and not requiring them to take undue risks with their safety is required. Forcing employees into a situation where they feel they have no alternative but to travel to work or risk facing a deduction from pay and/or possible disciplinary action should be avoided.
- Employees should be reminded of the importance of the absence reporting procedure (and if necessary have their memories refreshed as to what these are and where they can be found). If an employer knows as soon as possible who is/isn't going to make it to work they can make contingency plans etc.
- Employees should be encouraged to speak to their managers straight away should they have any queries in relation to matters such as working from home, leaving work early etc. Employers will need to keep in touch with employees during periods of bad weather and will therefore need to make sure contact details are up to date and agree with employees the best way to contact them. Employers should also decide on the best way to communicate with staff during any closure for example, through their website or on Twitter.
- Employers should urge employees to take particular care with regard to all journeys whilst the conditions are bad.
- Employers who are concerned that employees may be taking advantage of the weather situation to avoid coming into work could issue a statement reminding all employees that they could be subject to disciplinary action if they do not make reasonable attempts to get into work.
- Employers should make sure they have an adverse weather policy in place which sets out the position as regards using holiday, unpaid leave etc.
- Employers should consider amending standard employment contracts to make it what circumstances will amount to unauthorised absence and giving them the power to deduct salary in such situations.