Bad weather delays and travel disruption: the employment law implications

The fact that snow is not unusual in Britain seems to have escaped the attention of both traffic planners and the media: every year there is a note of surprise when relatively small falls of snow cause major disruption to travel plans. Newcastle upon Tyne after all lies at 55 degrees North: that puts the city on the same degree of latitude as Hudson’s Bay. Churchill, a town in Canada 2 degrees further north has a major polar bear problem in the winter months.

Polar bears aside, what are the employment law implications of employees being unable to work due to bad weather? Since the Covid pandemic led to the widespread take up of working from home, this issue might not be quite so acute as it once was. However, there are still many workers where getting into work is an essential part of their day. What is the position of workers who must report to the office or factory when hit by bad weather?

Historically, some industries have anticipated seasonal work restrictions and have lay-off provisions in the contract of employment. Briefly, with a contractual right to lay-off, the employer may give notice of the lay-off due to bad weather or other reasons: the employee is then entitled to claim state benefits over the period of the lay-off. If the lay-off lasts more than 4 weeks (or 6 weeks in any period of 13 weeks) the employee can give notice and claim a redundancy payment. Lay-off schemes are much less common than they were in the past, and a note of caution should be sounded: the statutory framework has rightly been described as “labyrinthine”.

But what about the situation where an employee decides the weather conditions are such that travel to work is too dangerous? Here it is important to remember that employees – from day one of their employment – have a right not to be subject to a detriment or to be dismissed for taking or proposing to take “appropriate steps” to protect themself or others from “serious and imminent” danger. Serious and imminent danger could include the risks of commuting. In Edwards v Secretary of State for Justice, the claimants refused to be driven to work at Dartmoor Prison as the road was closed because of snow – notwithstanding that the prison had provided 4×4 transport vehicles to assist. At first instance, the employment judge found that the claimants did not have a reasonable belief that the circumstances were serious or dangerous and therefore they were voluntarily refraining from going to work. However, on appeal the EAT took a different view: the employment judge had failed to consider whether each employee had a reasonable belief in serious and imminent danger: the fact that no accidents had (yet) occurred did not stop such a belief being reasonable.

So when it comes to winter weather make sure that any contractual policies and procedures fully cover the fact that it can get cold and snow – and what that means for work flows and commuting in. Make sure too that you are aware that extra protection is available to those employees who take – or propose to take – steps to protect themselves from danger, including the possibility of avoiding a commute rendered dangerous by severe weather.

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