Ramifications of disruptive weather

The disruptive red weather warnings that recently hit the UK impacted businesses throughout much of the country, particularly high street retailers. Mark Hamilton, a partner in the employment team at Dentons, looks at the ramifications of weather warnings and whether there is an obligation to pay those who did not turn up for work

Mark Hamilton
Mark Hamilton is an employment lawyer at Dentons (mark.hamilton@dentons.com)

Can employers insist that employees come to work in adverse weather?

Employers should have regard to the health and safety concerns of employees during periods of adverse weather and should not insist on attendance when getting to work would be dangerous.

Disciplining or dismissing an employee for refusing to comply with an unreasonable instruction is likely to be unfair.  However, an employer can tell employees what will happen if they do not attend work e.g. they may not be paid.

Even if an employer arranges transport to take employees to and from work during severe weather, employees are not legally obliged to take up such an offer. However, refusal to do so may lead to loss of pay.

Do employers have to pay employees who stay at home?

As always, employers should first check their own terms of employment and relevant policies. Is there some form of ‘Weather Policy’ and, if so, what does it and the contract actually say?

Employers with collective agreements should also check whether they deal with the issue. If contracts and policies are silent (as is often the case), the normal position is that wages are not payable unless the employee is available and has turned up for work. Therefore, an employee who is snowed in may have no right to be paid. On the other hand, if the employee can work from home, and they do, they are working and must be paid.

What if the shop has to close?

If an employer closes the workplace in order to ensure employees don’t get stuck, those employees can perfectly reasonably say they are available to work. So where a shop or warehouse is shut by the employer, the employees should be paid. The same applies where an employer cannot provide transport to work if this is a normal part of its arrangements.

Employers should also consider any policy allowing time off to look after dependants. While the statutory provision allows “reasonable” time off to deal with unexpected problems affecting a dependant, that time can be unpaid. However, many employers are more generous and offer two or three days paid time off.

What else should be considered?

As an alternative to going unpaid, employees may ask, or be asked, to use their holidays.

Beyond the law, employers should also be mindful of the employee relations aspect. Deducting pay, especially from low-paid employees, may cause them real difficulty and cause wider issues. Of course, paying employees who stay at home the same as those who struggle in can also lead to ill-feeling.

Whose responsibility is it if an employee is unable to return home from work due to the weather?

Unless an employer is contractually obliged to organise or arrange transport home from work, either in normal circumstances or in bad weather, it generally has no responsibility to get employees home.

What steps should employers take to mitigate risk?

If employers don’t already have a strategy for dealing with disruptive weather conditions, they should consider putting one in place. This could cover issues such as working from home in bad weather and clarifying pay arrangements if employees aren’t available, should public transport be suspended and schools being closed.

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