Severe weather over the past few years has caused significant problems for many employers whose employees have been unable to get to work. There are two main reasons for non-attendance in the event of severe weather:
- The impossibility of getting into work because of the weather; and
- School closures requiring employees with children to stay at home to look after them.
Employers should be aware of their rights and obligations in such circumstances to minimise the risk of conflict or claims. These in turn will depend on individual facts and terms of contracts of employment. The points made may also apply to employee absence because of strikes or other civil disturbance such as riots.
Where employees do not attend work because bad weather has made travel impossible, there is in principle no obligation to pay them. The employer-employee bargain requires an employee to be willing and able to work, for the employer’s obligation to pay to arise. If an employee is therefore absent without authorisation and is not working from home, there is no obligation to pay. Usually this answers the question ‘do I have to pay employees who don’t turn up?’ It’s helpful however to check some other points before refusing to pay.
First, check your contracts of employment to identify whether absence due to bad weather is stated to be an unauthorised absence. Second, check whether the absence has been authorised by the employee’s line manager in some other way. If the answer to both questions is no, in principle the absence is unauthorised and there is no obligation to pay.
Take care however that your contracts also entitle you to make deductions from wages in the event of unauthorised absence, otherwise there is a risk of claims for unlawful deductions from wages.
Be alert to difficulties encountered due to the weather by any employees who suffer from a disability, since the obligation to make reasonable adjustments to working practices may arise and ignoring it may result in a claim for disability discrimination.
Consider asking employees whether they would like to take paid holiday on days when they are unable to attend, but do not force employees to accept this retrospectively. Instead, consider alterations to contracts to permit you to deduct from employees’ holiday entitlement in such circumstances. Any such alterations would require employees’ consent.
Consider flexible working arrangements, such as working from home or allowing employees to make up lost time subsequently.
The impact of school closures
Employees are entitled to unpaid time off to care for dependants, but this is only intended to permit employees to deal with emergencies and therefore in principle, if the closure was foreseeable, or if it continues for a significant period, employees should make alternative childcare arrangements and return to work. If they do not, such absences would then become unauthorised absences.
Be aware however, of potential issues and claims of sex discrimination where those with childcare responsibilities who did not attend work are treated less favourably than those without such responsibilities.
Employers may decide to adopt a general discretionary policy to pay employees who have genuinely tried and been unable to attend work because of bad weather, whether in whole or in part, over the full period or for up to a maximum number of days. Such a policy will have the advantage of retaining the goodwill of employees and encouraging commitment and effort. Take care however to apply the policy consistently to avoid potential claims of discrimination on protected grounds.
Consider a flexible approach to such absences, whether on an ad hoc basis or in standard bad weather policy. Such an approach could include the possibility of employees using up holiday entitlement during absences because of bad weather, working flexibly either from home or by making up time lost at a later date.
Be aware of your duty of care towards employees and do not unduly pressurise employees to attend work in circumstances where it is not safe to do so. If employees feel pressured to attend to avoid seeing their wages docked and are injured in so doing, employers could be liable for any injury suffered.
If an employer closes premises and does not require employees to attend, in principle employees should nevertheless be paid, since they are ready and willing to work. If you wish to be able to close the workplace in the event of bad weather and not pay employees who are not required, consider making provision in contracts for lay off and/or short time working. Any such changes may only be made with employees’ consent if they do not already exist.
Do consider disciplinary action against employees who have not attended work despite being able to do so or who have made no real effort to do so, for example where employees A and B live next door to each other and take the same bus to work, but employee A has been in every day, whereas employee B has not, claiming the buses are not running. Ensure such action is taken on the basis of reliable evidence and after full investigation in accordance with usual disciplinary procedures.
Practical action points:
Check the terms of your contracts of employment to identify what is defined as unauthorised absence and amend if required. Check for a general deductions from wages clause in contracts so that deductions may be made from wages if required.
Consider introducing a bad weather policy clearly setting out the employer’s policy and practice in the event of non-attendance due to bad weather. Bring this to all employees’ attention in advance and in the event of bad weather occurring.
Review your procedures for flexible working and update if required. Consider whether and to what extent essential staff could be trained and provided with the resources to work remotely.
Remind staff of procedures for reporting to managers in the event of absence from work.
Remind employees that absences which are not genuinely due to bad weather will be treated as a disciplinary matter in accordance with the employer’s usual procedures.
Encourage employees to take all reasonable steps for their safety and discourage the taking of undue risks to attend work. Encourage employees to discuss concerns with managers and to raise any queries promptly, such as requests to leave early.
Consider procedures for keeping employees up to date during any absences, for example by email or on the employer’s website. Make sure contact details for employees are regularly updated and correct.