As snow and ice continue to cause disruption across the UK, many organisations will be forced to close but what are employers’ rights and obligations in such circumstances?

Do we have to pay employees who can’t get into work?

An employer will only have the right to withhold pay if an employee’s absence is unauthorised.

An employer therefore needs to consider carefully whether the terms of their contract make it clear that absence due to bad weather is not an authorised absence or whether it has been authorised in some other way (either expressly or impliedly) for example by a manager?

While an obviously unauthorised absence may be grounds for disciplinary action, it must be remembered that employees have statutory protection against any unauthorised deduction being made from their wages.

What about employees with childcare commitments?

If schools and nurseries are shut and employees cannot make alternative childcare arrangements at short notice they may be able to rely on the statutory right to take unpaid time off for family emergencies to do with their dependants. However, this is intended to allow alternative arrangements to be made and is not a right to allow employees to stay away to care for their dependants indefinitely themselves.

Employers also need to be aware that there could be potential sex discrimination issues if employees are treated less favourably than those who are absent for other reasons. For example, if an employer disciplined employees who were absent to look after their children, but not others.

Exercising discretion

Notwithstanding the strict legal position, an employer can decide pay employees for some or all of the days they cannot make it into work because of adverse weather conditions.

Clearly, there may be good employment relations reasons for doing so. However, is it very important that all employees are treated consistently in order to avoid discrimination claims.

Using holidays

A more practical way around the issue of absence due to bad weather mayl be for an employer to consider alternatives, such as:

• agreeing with the employee that they will take the time off as paid holiday
• allowing the employee to make up time within a specified time scale
• requiring the employee to work from home

It is arguable whether an employer has the right to compel the use of holiday entitlement

Bad weather policy

Good employment practice would be to make it clear to all employees what policy will be adopted regarding payment to non-attending employees and the use of holiday entitlement in the event of bad weather.

Employers should consider introducing a bad weather policy which clearly sets out the employer’s position and explains how it will handle absence related to bad weather.

Health and safety

Employers have a duty of care concerning the health and safety of their employees, so they should avoid putting undue pressure on employees to attend work if this could result in them taking unnecessary risks.

If the official advice is to stay at home unless the journey is essential, employers should not be asking individuals to get in regardless. There could be a potential liability for the employer if an employee suffered an injury after being pressurised into travelling by car or foot in dangerous conditions.

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.

Employers should consider amending standard employment contracts to make it what circumstances will amount to unauthorised absence and giving them the power to deduct salary in such situations.

Comment

Employers need to plan for extreme weather situations, have robust procedures in place and make sure managers know how to operate these consistently. Ideally, employment contracts should make provision for workplace closure due to bad weather and a bad weather policy should be added to the staff handbook.

If you would like help drafting a bad weather policy or amending employment contracts, talk to one of our employment specialists.