November 27, 2013

Coping with adverse weather conditions

The UK’s most powerful storm in 26 years, St. Jude, meant there was widespread public transport disruption and road closures, with many commuters struggling to get to work.

Extreme conditions like snow and ice often plunge the UK’s transport network into chaos. As a result, employers are faced with a wide range of employment issues regarding absence and attendance, pay, leave, health and safety and employee rights.

Must I pay those who cannot attend work due to the weather?

An employer is under no obligation to pay an employee if they fail to turn up for work or arrive late in adverse weather conditions (unless the employee’s contract of employment states otherwise).

This is the case even if the employee’s absence is through no fault of their own, for example, as a result of public transport disruption.

What practical options might I consider?

There are a range of options to be considered during such circumstances:

  • If an employee’s usual method of transport is not available to them, you can ask employees to consider alternative methods of getting to work.
  • Employees could work from home where feasible, or from an alternative office location if this can be more easily accessed.
  • You could allow employees to take any outstanding lieu time or flexi time available to them.
  • You could allow employees to take the time off as annual leave (where available), although you cannot require employees to take holiday at short notice.

If none of the above options are possible, then time off work would be unpaid, although it could be paid as normal at the entire discretion of the employer.

In practice, many employers choose to pay employees during very short periods of disruption – often agreeing that the employee will make up any hours missed at a later date. This will, however, be up to the mutual agreement of the employee and employer.

It is advisable that employers have a policy in place for dealing with this type of absence. The policy must be applied equally and consistently throughout the workplace. Once your employees are fully aware of how any absences will be treated, any dispute over leave or pay etc. is far less likely to arise.

What if I have to close my business premises?

Where an employer closes its premises as a result of unforeseen circumstances such as snow or flooding, and there is no work available for employees, this will result in a period of lay-off.  Unless there is a contractual right to lay employees off without pay, or employees consent to the lay-off without pay, they are entitled to normal pay for the duration of the lay-off.

If the employer fails to pay employees they may sue for damages, or claim unfair constructive dismissal (if they resign as a result of the non-payment) on the ground that there has been a fundamental breach of the contract of employment. Employees may also claim the employer has made unauthorised deductions from wages.

Even where there is an express contractual right for the employer to impose a period of lay-off without pay or the employee consents to the lay-off without pay, subject to certain exceptions, employees are entitled to a statutory guarantee payment for any complete day of lay-off.

Guarantee payments are limited to a maximum of five days’ payment in any three-month period. Guarantee payments are based on an employee’s normal daily rate of pay but are subject to a statutory maximum.
What if there are school closures at short notice?

Employees have the right to take unpaid time off work to deal with emergency situations regarding their dependents. Last minute school closures would constitute such an emergency situation. In such cases, an employee would be entitled to statutory protection for taking time off work.  Again the employer would be entitled not to pay the employee for this day, but may choose to do so.

What health and safety implications should I consider?

Employers have a general duty under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work.

Potential health and safety implications could arise if the general public are advised to avoid all but essential travel. You may not want to put too much pressure on people to attend work should conditions be too dangerous. A balanced approach must always be taken.

A risk assessment can be undertaken to determine how business continuity could be affected during a range of weather scenarios. The results can be used to develop a formal policy and procedure to ensure that such situations can be effectively managed.

(This information can be incorporated into the employer’s Attendance Policy, should such a document already be in existence.) Once a formal policy is in place, the document must be fully communicated to all employees.

Further advice and support

If you would like assistance to develop a policy to cover this area, or would like further advice on this topic, please contact an HR Adviser on 0845 073 0240 who will be happy to provide the necessary support.

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