HR advice from the Professionals

With the severe weather affecting the whole of the UK since prior to Christmas, the continuing poor weather has caused travel chaos for everyone.

Below, we have set out a number of FAQ of employer and employee rights during times of severe weather:

Some employees have been unable to get to work due to the severe weather, do I have to pay my staff who haven’t made it to work?

This is becoming a controversial issue, and widely reported on the news. Employees have a statutory right not to have unauthorised deduction from wages, and in most cases it will be unauthorised unless the contract of employment specifies this, or the employee consents.  However, it is understood that an employee who fails to attend work is in breach of fulfilling their contract of employment, and may not be entitled to pay.

You must consider whether an employee has made all reasonable efforts to attend work and or does your organisation have the ability to enable employees to work from home?

Many employers have made the decision to pay, particularly during the recent cold snap, and employers should be sympathetic to the fact that reports of this Winter being the coldest in almost 30 years!

For those who have been unable to attend work, should I record this as an absence or treat it as a holiday from the annual entitlement?

A less heavy handed approach is to treat as a holiday, due to the fact unpaid may be viewed as an unauthorised deduction from pay; however there is little case law to set a precedent. Equally, we would question whether an employer has the right to enforce annual leave at such short notice. Appropriate notice is usually said to be twice as long as the duration of the leave i.e. 2 days notice where the employer requests a day’s leave.

If you are choosing to dock pay from an employee who has been unable to attend work, good practice suggests making it clear to all employees, through a policy or staff communication of this practice.

What if I suspect that staff are using the cold weather as an excuse for not attending work?

In our experience, investigating the legitimacy of an absence in this situation requires a lot of time and resources, and would have to be backed up with sufficient doubt or evidence to suggest that the employee could have made it to work.  However, whatever you decide to communicate to staff in a policy or communication, it may be the case that staff who previously could not attend work start finding ways and means of attending!

An important aspect to bear in mind is health and safety and the overriding statutory duty of care. Whilst the authorities are urging individuals not to travel in certain areas unless absolutely necessary, you may wish to consider the pressure that you are putting people under to attend work. Also, be understanding if an employee turns up late for work, or needs to leave early to avoid additional travel disruption, particularly if conditions worsen throughout the course of the working day.

Give special consideration to those employees who are considered to have a disability, and encourage that they do not travel to work.

Employees should use their common sense however, and not attend to come in without taking unnecessary risks.

Some employees have had to attend to childcare after school closures, where do we stand?

It is understood that many schools close at short notice, often that morning. Where your employees have direct childcare responsibilities, flexibility should be offered to those who need to seek emergency childcare.

Under the statutory right for dependent leave, employees have the right to unpaid time off to deal with emergency situations and in the current weather, short notice of school closure could be regarded as an emergency. Strictly speaking, this could be an unpaid day or half day to sort out childcare, although you may wish to consider a holiday approach.

Whichever approach you take, ensure that it is consistent, for those employees with and without children.

You will see that there is no right or wrong answers to these questions, and it ultimately comes down to good communication, consistency in your approach in managing non-attendance. This is best guided by a robust severe weather policy.  Employers should take a balanced approach in encouraging employees to make all reasonable efforts to attend and forcing them into a situation where they are putting themselves at risk to get to work.