We have been blessed with a particularly mild winter this year but as always with the British weather we haven’t the foggiest (excuse the pun) what is around the corner. With that in mind have you considered your bad weather policy for your staff?
Bad weather and issues with travel arrangements can cause significant amounts of disruption to businesses and employers are often put in a position where they have to decide at the last minute what to do to adapt working arrangements to ensure that disruption is kept to a minimum.
Many businesses choose to put in place policies for adverse weather conditions and also to cover travel disruption. This ensures that interruption to the business is kept to a minimum.
There are some factors to consider when drawing up your policy and some common questions that we are asked are:
Should staff still be paid if they are unable to get into work?
At what point should the workplace be closed?
What happens if the employee is able to get into work but, for example, school closures mean that they are not able to get childcare organised?
Here’s what the law on the subject says
Pay
To deduct wages lawfully, there must be a clause in an employee’s contract allowing the deduction, the employee must agree to the deduction or it must be authorised by statute.
Assuming there is no clause in an employee’s contract allowing for the deduction and assuming the employee does not agree to not being paid, we need to look at the general legal position.
If an hourly paid employee is unable to get to work, it is clear that unless the employee actually turns up and works in accordance with their contract, there is no contractual right to wages.
But the legal position in relation to a salaried employee is less certain.
A salaried employee must be “ready and willing to work” to be paid. Common sense would suggest that an employee who cannot get to work is not “ready” to work and therefore not entitled to be paid. However, case law suggests that, in fact, providing the non-performance of work is involuntary and unavoidable, the employee may still be entitled to their wages.
There is no hard and fast rule on this point and a court would look at all of the circumstances including how a party has behaved on previous occasions. Therefore, it is important for an employer to consider what was done in previous years as well as whether the absence is “unavoidable”.
Many employers still choose to pay their employees in these circumstances to avoid issues with employee relations and bad publicity.
Workplace closure
There often comes a point at which it becomes uneconomical or unsafe for a workplace to remain open. If an employer chooses to close a workplace, employees will generally be considered to have been “ready and willing to work”, regardless of whether they actually were able to make it into work, and therefore should be paid unless the employer can rely on contractual terms such as a lay-off clause.
Time off for dependants
Employees have a right to take a “reasonable” amount of time off because of unexpected disruption of a dependant’s care arrangements.
In the circumstances where, for example, a school is closed because of adverse weather conditions, an employer cannot force an employee to use up their paid annual leave entitlement and cannot subject an employee to any detriment as a result of exercising their right.
However, in these circumstances, an employee has no statutory right to be paid for the time off and only needs to be paid if the employer has a dependent care leave policy that provides for the time to be paid.
Often, where there is no provision for payment, employers and employees will agree the employee can take the day as annual leave.
What you should do to reduce the risk to your business
- Communication is the key. The best way for an employer to approach these unexpected situations is to keep in communication with employees and be as consistent as possible with their approach.
- Consistency. Putting a policy in place allows both parties to know “where they stand” and avoids chaos on the day. Include it is the office manual and contracts of employment.
- Given the potential for legal uncertainty, employers may want to consider including a clause in employment contracts to specifically authorise deductions from wages if this is the approach they want to take.
- Consider the employee relations angle. While choosing not to pay employees for the day may harm morale; paying absent employees may also lead to resentment by those who struggle to make it into work (unless they feel their efforts are recognised).
- Remember that employee’s safety is paramount. Don’t try to keep a workplace open if it cannot be run safely. The last thing you want is a personal injury claim on your hands!
For further information about Employment Law, your obligations as an Employer and your rights as an Employee, or for advice on drawing up Contracts of Employment or Office Manuals please contact Alexander JLO’s team of expert Employment Lawyers.