Employment law Q&A: How to manage employee absences during bad weather

The bottom line is, if staff cannot get to work due to bad weather and they cannot work from home, an employer does not need to pay them.

Danielle Ayres | Employment Partner

By Danielle Ayres, Employment Partner

As we all endure the havoc caused by another British storm this week, and with more adverse weather conditions set to hit the UK, it’s essential your employment policies are watertight this winter.

With shifting attitudes about the return to office life, and some championing the convenience of working from home, when it comes to forces out of your control, where does that leave you legally?

We answer some of the most common questions we get from clients when the weather takes a bad turn…

1. Do I have to pay my employee if they fail to turn up to work?

Employers could, if they wish, make payments to staff that have made genuine and reasonable efforts to get to work, even if they arrive late or have to leave early. The bottom line however, is if staff cannot get to work due to bad weather and they cannot work from home, an employer does not need to pay them, unless their contract of employment or a company policy states otherwise.

Employers should be mindful of any arrangements or allowances that have been made in the past. If employees have always been paid when unable to get into work because of bad weather then they could argue that there is an ‘implied’ term of their contract that they are paid, despite not working.

Real consideration needs to be given to the situation and any alternatives that may be available before staff are told that they will not be paid if they do not get in to work, especially at this time of year and given the fact that adverse weather is far out of their control.

Questions to think about include: Are there any alternatives i.e. home working or sites closer to where the individual lives?  Can they reduce their day to give them more time to get to and from work? Is it worth staff taking unnecessary risks to make it into the office? How would the refusal to pay staff affect morale, if they have done all they can to get in to work?

2. Can staff be expected or request to work from home?

Given that many workplaces have implemented home working during the last few years as a result of the pandemic, it may be that this is easy to implement. Home-working could be a valuable asset in these situations and it would mean work did not have to stop, and employees would not feel obliged to even try and get in to the workplace. Having staff work from home, for many business owners, is preferential to losing a day of work altogether.

The health and safety aspects of having people work from home unexpectedly and whether their home environments are appropriate for work would need to be taken into account.

3. Can staff take a day of annual leave if the weather is bad?

Often, taking a day of annual leave is preferable to having a day unpaid at home if staff are unable to work. If the individual does not suggest this themselves, it is an option an employer can offer.  Since there is no obligation for them to use up their holidays in this way however, they may opt for unpaid leave.

It may be worth implementing a policy, obliging staff to take annual leave if a scenario emerges which prevents them from coming into the office and they are unable to work from home.

4. School closures 

Certain weather conditions may lead to school or nursery closures or mean that the form of childcare utilised by employees – such as grandparents or childminders – may not be readily available.  Likewise, it may be that elderly relatives or those in their care, need help.

In this case, although staff may be able to physically get to work, they may not be able to do so because of childcare or caring commitments.  Time off to deal with dependants can be taken by employees in these circumstances. This leave is usually for a short period of time – to deal with the immediate emergency – and is unpaid, unless the employee’s contract of employment or a company policy states that it should be paid.  Employers cannot make employees use their paid holiday entitlement for the day(s) off instead.

5. Do I have to pay staff even if the office is closed?

If you opt to close your office or workplace due to severe weather conditions, then staff must be paid regardless of whether or not they can get to work.  Again, other options should be considered here, such as working from home and later opening/closing times to ensure that business does not stop altogether.

6. Health and Safety

Employers have a duty of care for the health and safety of all of their staff.

If there is advice and warnings telling people not to travel unless it is essential, then employers need to be mindful of this, and of pressuring staff to get in to work in such conditions.  An employer could be liable if an employee was injured or hurt whilst trying to get to work, in dangerous weather conditions where they have said that they require them in.

It’s essential to try and find a balance between encouraging employees to make all reasonable efforts to get to work and not requiring them to take undue risks. Forcing employees into a situation where they feel they have no alternative but to travel to work or risk facing a deduction from pay and/or possible disciplinary action should be avoided.

As outlined above, it is good to think about this scenario in advance of the winter months.  Often a simple policy that outlines what’s expected of staff in these circumstances – how the business will continue running and what processes will be put into place – can avoid most questions and scenarios that arise.

If you need further support or guidance on how to manage your workforce during adverse weather conditions or getting the required policy in place, don’t hesitate to contact me directly at danielle.ayres@primaslaw.co.uk.

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