The recent frosty mornings reminds us that winter has finally arrived, and disruption due to the weather is highly likely over the next few months.
We thought it would be a good time to remind you of your obligations in relation to employees and the bad weather. We have highlighted the main concerns raised by employers and provided brief explanations below.
Employees unable to travel to work
With the chaos on the roads and the disruption to public transport there are occasions when employees are unable to attend work.
Ideally you would have an adverse weather policy that would clearly set out the obligations of both the employee and the employer in such circumstances.
In the absence of such a policy we are often asked whether an employer is obliged to pay an employee for the days when they do not attend work due to bad weather.
Most contracts of employment will confirm that an employee is only entitled to be paid for work done. In these circumstances it is therefore possible to withhold pay for the employee on any day that they fail to attend work. Some employers offer the employee the choice of taking a day’s holiday or having a day’s unpaid leave. This is certainly a sensible approach.
In the absence of a contractual clause confirming that employees will only be paid for work done, and in the absence of a clause allowing you to make deductions from an employee’s pay, you may find that employees issue proceedings for unlawful deduction from wages if you withhold their pay. Again, in these circumstances it is therefore sensible to offer the employee the choice of taking the day as unpaid leave or annual leave. Once they have indicated one or the other they will have accepted the position and will be unable to dispute it at a later date.
You may also want to consider whether it is possible for your employees to work from home or another more local workplace on days that they are unable to travel.
You need to ensure that there is a consistent approach throughout the company.
School closures and work
Often there is confusion when employees are unable to attend work as their child’s school or nursery has closed. The employee therefore needs to remain at home to care for the child. As you may be aware, employers are obliged to allow employees to take a reasonable amount of unpaid time off to deal with emergency situations in relation to their dependants. It is likely that school closures as a result of the adverse weather will amount to an emergency situation. As such, employees should be entitled to take the time off. The legal entitlement is that such time will be unpaid but you must ensure that you have a consistent approach. If you decide to pay employees who are unable to travel to work then you should also pay those employees who have had to stay at home to care for children who would otherwise be at school. Alternatively, you could offer all these employees the entitlement to take the day as annual leave.
Health and Safety
Employers should bear in mind throughout that they owe a duty of care to their employees. As such if authorities are telling people to stay at home unless their journey is essential, they may need to consider whether they will require employees to travel to work.
Employers close of business
Where employers choose to close for the day of business in adverse weather conditions, this will effectively be a period of lay-off. Unless you have a contractual entitlement to lay off employees, employees will be entitled to their usual salary during any such period of shutdown.
Employees abusing adverse weather
There are often occasions where an employer may suspect that an employee is abusing the adverse weather and falsely claiming that they are unable to travel to work.
Unfortunately, it may be difficult for an employer to prove the claims of the employee without attempting the journey themselves. In addition, you may be accused of inconsistent treatment if you only take action against those employees who live closest.
Employers who have queries regarding the above should contact Sally Morris at sally.morris@mfgsolicitors.com or on 01905 734032.
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