That time of year has arrived when, dressed up like the Michelin Man we scrape the ice off our car windscreens, slide off the drive (with a helping push from the neighbours) and carefully negotiate the slippery roads to work.
But what should an employer do when employees can’t get in to work because of the weather conditions?
Plan Ahead – If you’re up to your knees in snow, then you’ve probably left it a bit late. However, employers should develop a strategy to ensure business continuity in the event of a significant number employees being unable to get in to work. Introducing an ‘Adverse Weather’ policy and ensuring it is communicated to all staff should smooth the way and avoid uncertainty.
To Pay or Not to Pay – If an employee is unable to get to work because of the weather conditions, should they still be paid? The answer to this question may lay in the terms of the employees’ contracts of employment. If, however, the contract is silent, any unwritten practice of making payments operated by the employer over the years may result in an implied term being incorporated into the contract.
In circumstances where there are no express or implied terms dealing with the issue, then the basic contractual position is ‘no work, no pay’ and the Acas guide on travel disruption appears to support this view. However, employers who take this route should proceed with caution for a number of reasons.
Firstly, some employees may argue that they are entitled to be paid as they are ‘ready and willing’ to work but are prevented from doing so by the adverse weather conditions which are beyond their control. There may be some merit in this argument depending on the facts of the particular case.
Secondly, withholding pay in these circumstances may damage morale, goodwill and ultimately productivity. In larger companies in particular, this could lead to adverse publicity.
Health and Safety Issues – Employers do of course have obligations in relation to the health and safety of their employees generally. Furthermore, under employment law an employee has a right not to be subjected to a detriment by an employer for leaving or refusing to return to work in circumstances where the employee reasonably believes that to do so would put them in serious and imminent danger. In the circumstances, employers should have regard to employees concerns in relation to adverse weather conditions in order to avoid the risk of claims.
Alternative Strategies – A flexible approach in relation to working hours and/or location could be effective in securing greater attendance levels. Allowing employees to work from home may also provide a solution particularly where good IT equipment and support is available. Employers may also ask employees to take the time off as part of their annual leave provided the correct notice is given.
Ultimately, planning ahead and having the right policies and contractual provisions in place is likely to be the most important factor for ensuring certainty and stability for employers and employees.
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