Let it Snow, Let it Snow, Let it Snow

Rebecca Fielding, Associate in our Employment Team discusses the potential employer problems that adverse weather can cause.

With the effects of recent flooding, and the unpredictable threat of snow and ice, employers should be aware of the potential problems that adverse weather can cause in preventing employees from travelling to work. Such adverse conditions may cause major disruptions such as road closures and public transport delays or cancellations. Additionally, employees may need to take time off to care for their dependants due to an emergency school closure or cancellation of childcare arrangements.

Duty to pay ‘snowed in’ employees?

Employees are obliged to attend work according to the terms of their contract of employment. This obligation applies even in extreme weather conditions and the onus is on the employee to make sure they attend work. If they fail to attend, and are therefore unable to carry out their duties, there is an argument that the employer may be within their rights to withhold pay for that period of absence.

However, recent case law suggests that if non-performance of work is genuinely “involuntary and unavoidable” the employee may in fact still be entitled to their wages.

Regardless of the legal position though, employers often choose to exercise their discretion and pay their employees anyway, as a goodwill gesture. Such employers may be concerned that docking pay could breed resentment, plus there is a risk of receiving bad publicity and the employer being labelled “Scrooge”, especially around the Christmas period. The ACAS guidance on how to deal with this situation encourages employers to adopt a flexible approach to enhance staff morale and productivity.

Additionally, if employees know they are going to have their wages docked they may be tempted to falsely call in sick in the hope of receiving company sick pay during their absence, which could lead to the breakdown of trust in the workplace.

Of course, the obvious concern of many employers is that paying employees even if they are absent will encourage some to not even try to get into the office, whilst others will make huge efforts to get into work and feel put out if colleagues are being paid to sit at home. It is important in those situations to make employees aware that their efforts to turn up will not go unnoticed.

What are the alternatives?

• Allowing staff to work from home or at another workplace until the weather has improved.Asking employees to take the time off as paid annual leave. (However, not all employees may have sufficient holiday entitlement left in the year. Also, if an employer wants to force an employee to take annual leave then there are specific notice requirements to be adhered to.)
• Asking employees who are absent to make up the lost hours on other days.
• In an emergency situation where school/nursery closures prevent parents from coming into work, employees are entitled to take time off to look after dependants. However, the employee has no right to be paid for such time off, (though some employers may still chose to do so at their discretion).
• An alternative to unlimited paid leave would be for employers to offer limited paid leave, for example, 3 days in any year, though this is potentially open to abuse.

Taking pre-emptive steps

In the wake of the number of ‘freak’ weather incidents over the last 12 months, it would be prudent to implement an internal policy on how adverse weather conditions are to be handled going forward. Such a policy should:

• Include the procedure employees are to follow when notifying work that they cannot make it in.
• Clarify whether employees will be paid for any day(s) they are absent.
• Make it clear that employees are expected to make reasonable efforts to attend work and that attempts to use the policy as an excuse not to turn up may result in disciplinary action.
• Ensure that employees do not feel pressured to risk their safety by making the journey to work.

This policy, and any subsequent changes to it, must be communicated to all staff and should be applied fairly and consistently to avoid any potential confusion or disagreement.

If you are interested in receiving further advice on any of the issues raised in this article or have any other employment law questions please contact Rebecca Fielding on 0191 226 3740 or by email to rebecca.fielding@sintons.co.uk