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Snow your rights

The "Beast from the East" and Storm Emma have caused some extreme weather over the last few days, which has lead to disruption to public transport and treacherous driving conditions on some roads.

Whilst some areas have escaped the worst of the snow and ice and many employees have been able to battle their way into work through the adverse conditions, the weather continues to cause an issue for plenty of businesses and their staff.

As we’ve been a bit ‘snowed’ with queries on this issue over the last few days, we’ve put together a brief guide below on the most common questions which employers have. We hope you will find this helpful and please don’t hesitate to let us know if you have any other snow-related issues or specific queries.

Some employees haven’t turned up because they say that they can’t make it through the snow. Do I still have to pay them?

An employee’s contract of employment will specify the number of hours that they are required to work each week. It is unusual for a contract to contain any wording which entitles the employee to be paid where the absence is unauthorised. Employers are therefore generally well within their rights to withhold a day’s pay if an employee can’t attend work that day because of weather conditions.

It is of course open to employers to take a generous approach and pay the employee anyway or allow them the option of allocating the day as holiday so that they can be paid, and employers who have followed this approach in the past may want to consider whether to do so on this occasion. However, there is generally no right for employees who don’t turn up to work because of bad weather to be paid.

I’ve had to close our office because of the weather. Do I still have to pay employees or can I insist that they take holiday because of the office closure?

If the office is closed which means that staff can’t come to work then yes, employers generally do still have to pay them. This is because their contract of employment will require them to work a fixed number of hours and entitle them to be paid for those hours – if they can’t work those hours because the employer has closed the office, they are still entitled to be paid. The exception to this is if the contract of employment contains ‘lay off’ provisions which specifically allow the employer not to provide work and to reduce pay accordingly. There are special rules which govern ‘lay-offs’ and the employee is entitled to statutory guarantee payments, so if you are considering laying staff off then we recommend that you contact our team.

Employers are allowed to direct employees when to take holiday provided that they act reasonably, but this will only be helpful where they have advance notice of bad weather. The notice which employers must give must be at least double the length of the period of holiday they are directing staff to take, so if you are directing staff to take a day’s holiday because of extreme weather then you have to give them at least two days’ notice.

My staff have made it into work but the weather is getting worse and they are asking to leave early to ensure that they can get home safely. Do I have to let them leave?

Employers are generally able to insist that employees work through their contracted hours. However, lots of employers are willing to consider a more flexible approach in these circumstances and allow employees to leave earlier if working to the scheduled end of their shift might cause issues with them getting home because of severe weather.

As above, employees aren’t normally entitled to be paid for any hours which they don’t work. Employers might want to consider whether to offer employees the right to take holiday or to make up the lost time another day or simply to pay them for the whole shift anyway, although this is up to the employer.

I think that one of my staff is lying about not being able to attend work. What can I do?

Unlike staff who are genuinely not reasonably able to travel into work, an employee who lies about not being able to attend work is committing a potentially serious disciplinary offence. However, employers need to carefully consider whether they have sufficient evidence that the employee has been dishonest before embarking on disciplinary action. If you think that you may be in this situation, please get in touch to discuss it further.

One of my employees has called to say that their child’s school has closed because of the weather and they can’t come into work. Can I insist that they come into work?

The law gives employees the right to take time off for dependents in certain circumstances, which include dealing with an unexpected breakdown in care arrangements or an unexpected incident involving a child during school hours. If the school closure would leave the employee without any childcare arrangements, they would be entitled to take time off work and you wouldn’t be able to insist that they attend work. The right to time off for dependents is unpaid.

The right only extends to time off which is both reasonable and necessary to look after their dependent(s); therefore if the school confirms that it will be closed for the entire week, the employee would have to look to arrange alternative childcare if at all possible for the remaining days before continuing to take time off work under this provision.

It might not be safe for my staff to carry out their normal duties. What shall I do?

Employers have significant health and safety obligations towards their employees which revolve around keeping staff safe whilst at work. It is vital that employers have appropriate risk assessments in place, and these should be adapted for extreme weather conditions. If an employee is injured at work and it is the fault of the employer (for example because they have not provided a safe place of work or a safe system of working), they could be sued by the employee for any personal injury and might also face criminal action from the Health and Safety Executive.

Employers need to make a very careful assessment of whether it is safe for their employees to work depending on the particular circumstances in each case. For example, requiring an employee to drive a short distance on a well-gritted road in a four-wheel drive vehicle might be deemed to be safe, whereas asking an employee to make a longer journey in a less suitable vehicle across treacherous roads is much less likely to be safe.

If it isn’t possible to sufficiently address any issues caused by the weather by taking steps such as gritting paths, providing extra clothing or providing additional equipment, employers should consider whether the contract of employment allows them to require the employee to work from another location or to carry out alternative duties. As above, if you aren’t able to offer an employee work during their guaranteed working hours then you will normally have to pay them for these hours unless there is a ‘lay-off’ clause or you agree otherwise with the employee.

Is there anything I can do now which might help when there is extreme weather in the future?

Extreme weather conditions are inevitably likely to cause some disruption to businesses. However, in addition to ensuring that robust risk assessments are in place, employers should consider whether their standard contracts of employment give them sufficient flexibility to deal with issues caused by adverse weather.

Employers might want to take this opportunity to look at introducing an adverse weather policy which clearly sets out their procedure on these sorts of issues.

Employers might also want to consider whether their organisation might benefit from encouraging and facilitating flexible working. Although this will depend on the business as flexible working is easier and more beneficial for some employers to facilitate than others, employees being able to work from home during periods of extreme weather can avoid many if not all of these typical issues for employers.

If you would like to explore this any further, please get in touch a member of our employment team and we’d be very happy to guide you and help put together appropriate policies for your business.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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