Winter weather and travel disruption: an employer’s survival guide
Severe weather and industrial action on public transport can prevent employees from getting to work. Employers should have a clear and consistent strategy for dealing with such circumstances and should consider:-
- How to ensure business continuity and resilience if a significant proportion of staff are absent.
- Staff management issues such as whether to:
- pay staff who are absent.
- allow staff to work at home or instruct them to attend an alternative workplace.
- how to keep in contact with staff.
Health and safety concerns
Employers should have regard to the health and safety concerns of employees during severe weather and especially so if the authorities have advised people not to travel.
Do you have to pay employees who cannot get in to work?
Providing the employee is “ready and willing” to work the employer must pay them, even if there is no work to do. That means that if you have to close your business temporarily you will need to pay your staff their normal pay. Failure to pay wages under these circumstances would make the business liable for an unauthorised deduction of wages claim. (Unless you can rely on contractual terms such as a “lay off” clause).
What is less clear from the case law is whether employees must be paid when they cannot get into work. Workers on zero hours contracts with no guaranteed hours have no contractual right to be paid unless they actually do the work. But what about salaried employees where there is neither an express term in the contract stating they will be paid, or a very clear custom or practice of paying?
Many organisations, including Acas, take the view that employees have no entitlement to be paid because employees who cannot get to work are not “ready” to work.
Docking pay or paying all? The pros and cons
That said docking pay can cause ill feeling and lower morale. On the other hand paying all staff regardless might cause resentment from the staff who struggle to get work if they think other colleagues are unfairly exploiting a paid “duvet day”. The Charted Institute for Personnel and Development advises that whilst employers may be entitled to dock pay it is not recommended:
“It’s important to show empathy with employees – particularly those that normally perform well – as research shows that this flexibility and trust will pay off in the long term, with employees more motivated and going that extra mile when they are able to get to work”.
Many businesses already have a working from home policy and this can be an ideal option, especially for staff supplied with company laptops and mobile phones. Take care of data protection issues however if staff cannot log onto the company computer network and start using their personal emails for company business.
Working from another site closer to the employee’s home
Another option which can especially suit office workers and those with company laptops although it may take a little planning in advance.
Paid annual leave
Employers might want to offer staff the option of taking the day off as paid annual leave, assuming they have enough leave entitlement left. (As most snow seems to fall in January when many leave years start this could be a good option).
Note that you cannot force staff to take their statutory annual leave at specific times unless you give sufficient notice. One day’s holiday would require 2 days notice; one week would need two weeks notice. You can waive this notice requirement if you have the employee’s explicit consent in writing, for example in an email exchange. On balance, though, forcing annual leave upon staff may not only be impractical but also damaging to morale.
Making up the hours
This is especially easy for employers which already operate flexi-schemes. Some employers have a system for making time up in lieu when an employee takes time off for personal appointments and this can be used for travel disruption. Even without any sort of scheme in place, employers and employees should be able to reach an agreement over lost hours. If different line managers are to negotiate these agreements with their direct reports businesses must brief their mangers so that everybody is treated equally.
Acas says that “the handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled”. The employee with the 4 wheel drive might by very happy to pick up his or her colleagues if the idea is encouraged.
School and nursery closures
Employees have a right to take a “reasonable” amount of time off because of unexpected disruption to a dependant’s care arrangements. (Employment Rights Act 1996 S57). If a school closes or a child-minder does not turn up the employee may have to take the day off to look after their child. There is no statutory right to be paid for this time off but employers must not subject the employee to any detriment for exercising this right.
Action Points – Planning Ahead
- Have an adverse weather policy in place. Drafting the policy will help you think about whether you want to pay for absences or not so that you don’t have to make inconsistent decisions on the hoof.
- As soon as disruption is predicted remind staff in advance of your adverse weather policy.
- Consider data protection issues in advance if you want to let staff work from home on their own computers. (Or have a Bring You Own Device policy if you let staff bring their own laptops and smart phones to work).
- Finally don’t forget about the morale angle. You don't want the winter blues carrying over to spring.
If you would like help devising policies on adverse weather and travel disruption, data protection, working from home, bringing your own device to work or any other issues raised in the guide, Please contact our employment solicitor Deborah Scales on 0808 168 5550 or email Deborah.firstname.lastname@example.org.