As I sit in the office this afternoon watching a few flurries of snow outside the window, waiting in anticipation for the Beast from the East to hit and listening to the radio with claims of weather colder than the arctic circle – winter has most definitely arrived in the UK!
A bit of snow is normally great fun, but for employers it is a headache; are you legally obliged to pay employees who fail to make it to work because of adverse weather conditions? What steps can employers take if they suspect an employee is using the weather conditions as an excuse not to turn up to work? What are the implications for employers if schools close, if the office has to close, or for the employees who actually do make it in?
It never hurts to plan from a business perspective and indeed having extreme weather and disruption policies in place can never be a bad thing, here a few things to consider:
Do you have to pay employees who are unable to get into work due to snow and difficult transport conditions?
Employees are obliged to attend the office unless they are on holiday, sick or on maternity leave etc; the responsibility is on employees to come into work. Technically, this applies even in extreme weather conditions. Therefore, if the office is open and employees cannot make it into work because they are ‘snowed in’, depending on the contract, you are entitled to treat their absence as unauthorised and are under no obligation to pay them. If an employee’s normal mode of transport is out of action due to severe weather disruption, there are a number of other issues which an employer would need to consider before withholding pay.
First, you should encourage employees to explore alternative means of transport. However, employees should not feel pressured to risk their safety to get into the office so it may be sensible to consider whether employees could usefully work from home until the weather situation has improved. If this is not a viable option, then the alternatives available are for you to advise employees that:
- any time off work in these circumstances will be unpaid (ideally, you will have a contractual provision to support this); or
- they will be paid but will be expected to make up the time at a later date; or
- they can request to take the time off as paid annual leave or as unpaid time off for dependant’s leave (e.g. if schools close – see below).
Employees have statutory protection against an unauthorised deduction being made from their wages without their consent. They could therefore challenge your decision to withhold their pay. However, it is arguable that there was no entitlement to pay as no work was done.
Can you require an employee who cannot get into the office to take a day’s holiday?
This is not likely to be an option for most employers, unless the employee’s employment contract contains an express right for the employer to require when an employee can take their holiday. Without this provision employers cannot force employees to take a day’s holiday without their consent.
To avoid the office becoming a temporary crèche, there are statutory rules which allow parents to take time off when there is an ‘unexpected disruption to childcare’ and parents are protected from suffering a disadvantage for doing so. If the school closure was announced first thing in the morning and alternative childcare arrangements cannot be made, this could constitute as an emergency situation and employees would be entitled to statutory protection for taking the day off. Strictly, the day would be unpaid but not all employers will take this approach. It is also important for employers to adopt a consistent approach to the policy adopted for employees without children.
Working from home
If it is safe to travel, employees should come into work as usual. If employees are concerned that the conditions are not safe or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees can now access their work email and office applications remotely via a laptop, PC or mobile phone.
However, even though they are at home, employees need to be clear that they must still work as they would in the office not just watch TV and do odd jobs! A home working policy could be helpful, making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output.
What if an employee could have made it into work but chooses not to?
If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally (or are spotted shopping), this could be a disciplinary matter. However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a ‘snow’ day. In a blatant or persistent case you may, of course, choose to investigate the matter in the usual way and take any necessary action in line with the company’s disciplinary policy.
What if you are forced to close the office due to the severe weather conditions?
If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay. If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an ‘unpaid lay-off’ clause in your contracts of employment, or the employees expressly consent to being laid off without pay. There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments, and you should always take professional advice before proceeding.
What about the employees who actually make it into work? Should they get a day off in lieu as compensation?
In some situations it can lead to resentment among employees who have battled into work in difficult conditions; especially once they are in the office and laden with the work of their absent colleagues. Ideally, the employees’ efforts should not go unnoticed but a day off in lieu or other financial rewards are unlikely. Employers should, however, carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home, otherwise they may spend it digging their employees’ cars out of the snow in the office car park!
It is worthwhile for employers to consider introducing an ‘adverse weather policy’ so employees know what is expected of them when severe weather strikes. This will also help avoid confusion and conflict when the extreme weather arrives. Alternatively, you could amend your normal absence policy to cover such instances. The policy should contain guidance about workplace closures, disruptions to public transport, working from home and remote IT access, whether employees will be paid if they fail to attend work, disciplinary sanctions for ‘snow’ days and whom employees should contact once they know they will be unable to make it in. As the occurrence of severe weather is on the rise a clear adverse weather policy could be a worthwhile investment.
If you need help or advice on anything we have covered above or need help with crafting disruption policies.