Joanne Perry Partner
+44 (0) 1727 738920
24th January 2019 | Joanne Perry | Employment Law, Employer
When a snow day arrives, businesses suffer the effects of enforced staff absences. Employers are left counting the cost of the lost days, and forecasters predict more bad weather may be on its way.
Organisations such as the TUC and CIPD urge employers not to play “Scrooge” by trying to force employees to get into work or threatening to dock their pay if they fail to come in. However, the financial burden on an employer can be significant. So, what exactly are employers’ obligations in this situation?
Do I have to pay employees who are unable to get into work due to travel difficulties?
Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid on “snow days”. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any travel difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.
Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions, employees are unable to get in.
Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have a “Bad Weather Policy”. Consider whether employees are able to work from home or whether alternative travel arrangements can be made. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.
As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.
I have an employee who is able to get into the office but says s/he cannot come in because his/her child’s school has closed. What shall I do?
Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced significantly in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.
Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.
One of my employees failed to come into work today, blaming the snow. I think he is using it as an excuse and could have easily come in. Where do I stand?
If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate. However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in bad conditions.
Am I obliged to allow employees to work from home?
Home working can be a good alternative for employees who are unable to get into the office. Use of remote computer access and such devices as iPhones can mean that employees are able to seamlessly work from home. You do not, however, have to allow employees to work from home if you do not think it is appropriate.
If you do permit home working, be clear on what you expect from employees. A home working policy would be a good idea, which should also cover the health and safety aspects of working from home.
Some employees who have made it into work are resentful of the fact that their colleagues are having a day off, while they have to work. Am I obliged to reward them?
In short, no. They are only doing what they are contractually obliged to do. If their colleagues are not being paid for having time off, or if they are using annual leave, this may address their concerns. However, if you have exercised your discretion to pay employees who do not come in, then those employees who have fought their way into work may feel that they have been treated unfairly.
It is a generous employer who grants those employees time off in lieu or some other financial reward. However, from a morale point of view, their efforts should not go unnoticed and a word of thanks, or an email to those employees who have made it in, can go a long way.
Employers should also consider any weather warnings and travel advice and allow employees to go early if necessary to avoid potentially dangerous travel conditions. Also, you wouldn’t want staff to be stuck in the office overnight!
The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or other suitably qualified person, about your specific circumstances.
Contact Jo for more information.