Bad weather and issues with travel arrangements can cause significant amounts of disruption to a business 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 companies are choosing to put in place “adverse weather and travel disruption policies” to ensure interruption to the business is kept to a minimum. Doing this often raises the following questions:
- 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 to work but (for example), their children’s school is closed and they do not have childcare organised?
So what does the law say?
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.
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 or nursery is closed because of heavy snow, 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.
Practical tips to reduce business risk
- 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.
- Putting a policy in place allows both parties to know “where they stand” and avoids chaos on the day.
- 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 to work (unless they feel their efforts are recognised).
- Remember that employee 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!
Give the Employment team at Roythornes a call to see how we could help you put in place adverse weather and travel disruption policy.