Struggling to work

As Britain struggles through the longest cold spell for 25 years, businesses face the issue of dealing with employees who do not attend work.  Surveys indicate that a substantial proportion of the UK workforce stayed at home on Wednesday, and more snow is forecast in the region for the coming weekend.  

The biggest issue of public debate appears to be whether employees should be paid for days off due to adverse weather.  However, there are other matters that employers may be considering, including whether non-attendance at work could amount to a disciplinary issue if employees use the weather as an opportunity  to take time off.

In general terms, employers do not have the right not to pay their staff, subject to limited exceptions.  Any unauthorised non-payment will amount to an "unlawful deduction from wages", but only where the wages that are "properly payable".  In deciding whether or not wages are "properly payable" and whether an employee must be paid, then the starting point is the employee's contract of employment, and any workplace policies that you have in place.  

Employees are (usually) contracted to work the hours set out in their contract of employment.  So if employees do not come to work during those hours, then technically they are in breach of contract.  Since they have not performed their side of the contract, then their right to benefit from your side of the contract and receive wages has not arisen.

In general terms, it would be unusual to see any express provision in an employee's contract entitling that employee to be paid, regardless of whether they have undertaken any work.  However, there may be a provision within your staff handbook stating that if an employee is unable to attend work due to adverse weather conditions, then they will be paid.  Also, if you have consistently paid employees for absences due to adverse weather in the past, then it may be possible for them to argue that this has been implied as a term into their employment contract by custom and practice.

The most usual position however is that employers will consider whether to exercise their discretion to pay employees who were unable to get to work on a case by case basis.

Using this discretion allows you to distinguish between employees who genuinely are not able to come into work because of the weather from employees who use the weather as a less genuine excuse to stay at home.  When exercising such discretion, you should ensure that you are act reasonably and consistently.  Whilst it may be easy to say that you will not pay employees who should have been able to make it into work but failed to do so, it could be a very difficult exercise working out when this is actually the case.

Also, with Police and the Highways Agency advising drivers to stay at home unless their journey is absolutely necessary, it would be unwise to press employees into coming in to work, if this would mean them taking risks on treacherous roads.  Employers have a duty to safeguard the health and safety of their employees, and it could be arguable that by pressurizing an employee to attend work, you hold some responsibility if they then suffer an accident.

It would be unreasonable for you to expect employees to put their health & safety at risk by trying to come into work in those circumstances, and to do so could be a breach by you of your duty of trust and confidence to your employee.  This means that you could risk claims of constructive unfair dismissal (even if this is a remote risk).  Arguably, by not paying an employee who is genuinely unable to get to work, then you are exerting such unreasonable pressure upon them.

You should also remember that employees have certain statutory rights to time off which may not appear in their contracts.  These include the right to unpaid time off for certain domestic emergencies, such as where an employee is unable to attend work because their child's school is closed.  This right could be limited to making alternative arrangements for the child, although in reality it is likely to be reasonable to allow an employee the entire day off if the school closure was not announced in advance.

Alternatives to not paying employees for days on which they cannot attend work because of the weather include:

• Allowing their employees to take days that they are unable to get to work as holiday, waiving their usual holiday booking procedures.  This may be a workable alternative as it allows employees to be paid, but still ensures that employers are not out of pocket either.  However, this may not be possible if employees have already used their full holiday entitlement, and may generate employee resentment;
• Allowing (or indeed requesting) employees to work from home (if that is possible); or
• Making up the lost time at a later date.  Sainsbury's have a policy that employees are only paid for the shifts that they work.  However, their policy allows employees to work additional hours on a flexible basis later in the month to ensure that their monthly pay is unaffected by days off due to snow.
  

In any case, it is advisable to have a policy in place so that employees know in advance what they should do if they are unable to come into work.  This would include reporting procedures, whether (and if so in what circumstances) you will be paying employees who fail to attend, and whether you will make allowances for employees who do attend work, but are late getting in.

Your policy should also state whether you will expect employees to undertake work from home (if this is practical), or if you would allow them to make back lost hours through flexi-time.

For more information on Ashfords' Employment Team please click here.

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.