Adverse weather and getting to work

Specialist employment lawyer, David Dixey, takes a look at what happens when you can't get to work due to adverse weather conditions.

Adverse weather conditions sometimes cause major disruption to transport and other infrastructure resulting in employees being unable to get to work. The rights of employees and indeed obligations of employers in this situation (in particular whether there is a right to be paid regardless) will likely depend upon:

1. The terms of any written employment contract;
2. Relevant policies within a staff handbook;
3. Working practices (customs and practices) routinely implemented such that they are implied into contract (ie “my employer usually paid everyone regardless of weather related absence”).

It is advisable for employers to clearly address the issue within the employment contract or accessible Handbook.

An employer may reasonably assume there is no obligation to pay wages in circumstances where an employee does not turn up and perform their duties. However, in the absence of unambiguous contractual terms employees’ entitlement to pay in such circumstances can be unclear, increasing the risk of disputes or at the very least damaging workplace morale. If a contract is silent on this issue an employee (in particular a salaried employee) may argue that their inability to reach the workplace is involuntary (out of their control), and that they remain “ready and willing” to perform their work; consequently that they have discharged their contractual obligations and should still be paid. This argument may be harder to advance for those employees (such as piece workers) where actual performance of the work is an essential ingredient of their contract.

Where an employee can demonstrate a right to be paid then any failure to do so may give rise to a claim for unlawful deduction of wages in the Employment Tribunal or a breach of contract claim.

Taking the Time as Holiday:

Employees may wish to take paid leave during such absences, or agreement is ultimately reached between employer and employee to do so. However, care should be taken in circumstances where the employer wishes to force employees to take leave; clear contractual provision for this would be required and some employees may not have sufficient leave remaining.

Time Off for Dependants:

Employers must take care not to breach employees’ specific rights surrounding time off for dependants. Whilst employees will have no statutory right to be paid for such time off they must not be subjected to any detriment as a result of exercising a right to take time off to care for dependants (caring for children during school closures etc). Equally they should not be forced to use annual leave entitlement in such circumstances. What amounts to a “reasonable” amount of time off is not defined, but will often be determined by the length of school closure or other circumstances. Employers have the choice to make contractual provision which is more favourable, whereby they agree to some limited paid leave in these circumstances.

Employee Relations:

Regardless of the contractual or statutory position many employers recognise that providing flexibility, including perhaps limited entitlement to pay, helps employer/employee relations in the areas of recoupment, retaining staff and potentially the public perception of an employer’s business.

Employment law advice from specialists

Holmes & Hills have a team of employment law experts who can advise both employers and employees on various workplace issues. Contact the team to get advice today.