It is almost inevitable that, at some point, there will be a situation arising from adverse weather or severe road or travel disruption which plays havoc with employees’ ability to attend work. The difficulty of such situations is that they are usually unplanned. It is prudent, therefore, for employers to have a policy to deal with such situations to try and minimise disruption and ensure that the employer is kept informed at the earliest opportunity. This policy should be communicated to all employees.
In putting together a policy, employers need to balance the need to minimise the disruption to its business with having regard to the health and safety of its employees. Care needs to be taken to ensure that employees are not encouraged to travel when it is not safe for them to do so.
The model policy [ADVERSE WEATHER POLICY] provides that employees make reasonable efforts to attend work, but to maintain contact if this is not possible. There is also an expectation that employees will monitor the situation over the day and attend work if the situation changes.
Where the disruption causes a school to be closed or childcare arrangements to be disrupted, this may entitle the employee to take time off in accordance with the statutory time off for dependants right. Details of this right can be found at [GUIDANCE ON TIME OFF FOR DEPENDANTS].
As to whether employees are entitled to be paid if they are unable to attend work, there is some legal uncertainty on this point. If the contract of employment provides that an employee will not be paid if they do not attend work in such circumstances, then the employer is able to deduct pay. However, even if there is a contractual entitlement to withhold pay, the employer may exercise discretion and pay the employee on the basis that it is good employee relations, recognising that this is a circumstance outside both the employee and employer’s control. An employer should act consistently if deciding to pay employees.
Where there is no such clause, then there is a risk that any withholding of pay might amount to an unlawful deduction of wages as the reason for the employee not attending work is not due to unwillingness on their part, but due to factors that are unavoidable.
In the event that the employer decides to close the workplace, then assuming that the employees are ready and willing to work, the employer would be liable to pay the employees for their normal hours unless there is any clause in the contract, or valid collective agreement, that allows the employer to “lay off” employees on reduced pay in such circumstances. [GUIDE TO LAY OFF].
To minimise the disruption to the employer and to avoid the deduction of pay from employees, if applicable, it is sensible to consider alternative methods of working. This may be by allowing home-working or working from alternative locations closer to the employee’s home i.e. offices of a sister company, etc. If the employee has sufficient leave left, annual leave could be considered. Where the day is to be taken as annual leave, this should be confirmed in writing. An employee may elect to take the day as unpaid leave, if allowed, to avoid the day being considered as part of the absence monitoring process. Again, this should be confirmed in writing. Other ways of dealing with employees not able to attend work is to require them to make up the hours some other time, preferably within a specified timescale.
Employers who operate a system of “banking” hours to cope with peaks and troughs in business may be able to use this system to balance out work at a later date.
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