In recent years, significant disruption has been seen in the UK by the effects of extreme weather conditions, and other external factors which can affect an employee’s ability to carry out their role as usual. Employers are often unsure how to deal with a situation whereby an employee tells them they are unable to work due to travel disruption and/or adverse weather conditions. We have therefore addressed below some of the key considerations which employers need to think about on this topic.
In recent years, the working world has changed drastically and now many people work from home on a regular basis and, if not, could do so if needed. For employers where this is commonplace in their business, the effect of adverse weather conditions or travel disruptions might be insignificant. However, there are still many industries where presenteeism is a mandatory requirement (for instance, healthcare, hospitality and education) and so this article will be particularly relevant for such employers.
What interruptions could stop workers from attending their workplaces?
Most employees will make every effort to ensure that non-work-related factors do not get in the way of them attending work and carry out a normal day’s work. That said, unfortunately, there are a number of matters outside of an employee’s control which may make attending work more difficult or even impossible.
These would include:
- Weather: Snow, ice and flooding often lead to road closures and disruption to public transport;
- Roadworks and highway maintenance;
- Industrial action: striking might prevent an employee from undertaking their usual train or bus journey to work;
- Flight cancellations: a cancelled flight to return from holiday might mean that an employee cannot return to work at the end of a period of annual leave.
How can I prepare for if travel disruption or adverse weather affects the ability of my employees to attend the workplace?
Most employers would hope that the occasions whereby an employee cannot get to work due to a train strike, heavy snowfall or flooding would be limited and rare. That being said, this does not mean that employers should not plan ahead in the event that day-to-day business activities could be disrupted in such circumstances. Developing a strategy can be key to ensuring that the adverse impact of public transport or the weather can be reduced. More importantly than this, employers have a duty of care to take reasonable care for the health and safety of employees and this extends to consideration for the activities they are required to undertaken. Therefore, requiring an employee to potentially endanger themselves by travelling for work or attending the workplace in extreme or adverse weather conditions could place an employer at risk of claims such as constructive unfair dismissal.
It is therefore recommended that employers do all that they can to ensure that their workforce know what they need to do in the event that travel disruption or adverse weather arises.
As with many other areas of employment law, a well-drafted and comprehensive policy can help to plan ahead which might include:
- Reporting procedures in the event that an employee cannot travel into work;
- Expectations of the reasonable efforts which the employer expects the employee to make in the case of any disruption;
- Agreed alternatives in the event that an employee’s working day does become affected;
- Details of pay in the event that working time is lost due to the weather or travel disruption.
Employers might also need to carry out a risk assessment to establish whether weather conditions might affect whether it is safe for an employee to attend work. For instance, does the employer need to ensure that it has measures in place to avoid employees slipping on ice in a car park or service yard? For employers whose business requires employees to be outside then risk assessments for weather conditions are particularly important.
If an employee is late for work due to weather or travel disruption or cannot attend work at all, do I still need to pay them for the time that they have not worked?
The answer to this is not clear cut and would be highly dependent on the individual circumstances. The basic contractual position is that wages are not payable unless the employee has provided consideration.
Consideration can be provided by an employee in one of two ways:
- Where their contract provides for actual performance of work by the employee; or
- Where their contract provides a requirement for the employee to be ready and willing to work.
For employees who are on casual contracts with no guaranteed hours they are likely to fall into the first category and therefore any working time lost can be unpaid on the basis that no work has been completed.
For employers who receive an annual salary, the position is less clear cut. This is because a salaried employee receives their pay regardless of whether their employer provides them with any work to complete. There is no case law to support the general presumption that employees do not need to be paid if they are unable to work. Rather the case law would support that where non-performance of work is involuntary and unavoidable, an employee may be entitled to their wages.
In the absence of a clear contractual position, a large degree of weight would likely be attached to how the parties have behaved on previous occasions and other non-contractual documents such as workplace policies.
In any event, employers need to think carefully about whether they wish to dock an employee’s pay from an organisational point of view as well as legal one. Making deductions from an employee’s pay might lead to poor employee satisfaction, low morale, reduced productivity and potentially lower rates of staff retention. Equally, employers who do not pay in such situations may see a rise in the use of sickness absence where company sick pay is paid from day one. The flip side is also true – employees who know they will get paid regardless might not make reasonable efforts to make it to work when the disruption to their day is only minor.
So, what are the alternatives? A flexible approach on both sides is the recommended approach.
Employers might consider implementing one or more of the following:
- Allowing flexibility on start and finish times to enable employees to work around any disruption;
- Allowing employees to make up any lost time;
- Temporary changes to home and hybrid working arrangements so that employees can work from home where possible if they are unable to travel to work;
- Temporary changes to shift allocation to give flexibility to those who are finding it harder to attend work on a particular day;
- Temporary changes to allocation of duties to meet the actual capabilities of an employee on a certain day; and
- Allowing employees to take time off as holiday instead of unpaid leave.
If you need specific advice or assistance on how to plan ahead for adverse weather or travel disruption then please do get in touch with one of our Employment Law team who will be happy to help.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
