Snow joke: Getting your employees to work
With the big freeze starting to form an icy shadow over parts of the UK, employers and employees alike may be wondering what impact the cold spell will have on the working week.
PAYMENT OF EMPLOYEES UNABLE TO ATTEND WORK
One of the most frequently asked questions is whether or not employees should be paid if they do not attend work in adverse weather conditions. Quite simply, an employee is paid by their employer in return for their services. If the employee cannot provide their services, there is an argument that an employer should not have to pay their employee. In reality however, employers will look at each situation in isolation to determine what action it will take. For example, if all employees make it into work but one and that one person lives in the countryside and has found it impossible to get into the office, the employer may decide to pay that person given their circumstances. However, if that one person lived very close to the workplace, the employer may wish to consider not paying them and even taking disciplinary action.
When considering non-payment, employers should be mindful of:
- the employee’s right not to suffer unlawful deductions from wages; and
- the employee’s express and implied contractual rights
In order to make a deduction from wages, the deduction must be:
- authorised by statute; or
- permitted by a contractual term that has been notified to the employee in writing; or
- permitted by the employee’s prior written consent.
Case law, limited though it is on this particular issue, does indicate that if the non-performance of work is involuntary and unavoidable, the employee may be entitled to their wages.
Employers need to think about the impact payment and non-payment will have on their business. Non-payment could affect morale, reputation and abuse of sick leave but on the other hand, paying absent employees could result in more employees taking advantage of adverse weather conditions in the future or even result in a precedent being set for future cold snaps.
Employers should consider having a policy in place which deals with adverse weather conditions. The policy should set out that:
- all employees need to make every effort to attend work. If they are unable to do so, they need to telephone the office in accordance with the absence policy;
- employees who cannot attend the office will be expected to work from home (if their role allows for this);
- if employees are absent from work, they will be expected to make time up. Some policies may state that if employees arrive late and finish early, they will need to make this time up also. However, some employers may be concerned about including this provision as it could encourage absence and it may be better to encourage workers in for at least the best part of the day than not have them attend work at all; and
- employees are not entitled to be paid for such absence. Employers may opt to include a clause which states that if a genuine attempt to attend work has been made, payment will be made to the employee.
Employers are advised to remind their employees of any relevant policy before the arrival of bad weather so that all employees are aware of the policy and what is expected of them. Employers can also state that if the policy is breached or of an employee is found to be absent for no good reason, disciplinary action may be taken. Prior warning will often prevent issues arising.