Weather related absence – to pay or not to pay? That is the question

Year Published: 2010

With the current weather conditions, we are seeing an increasing number of enquiries and news reports with regards to whether or not employers are obliged to pay their employees who are unable to make it into work as a result of the snow and ice.

One of the basic principles of an employment relationship is that an employer is under a duty to provide an employee with work and an employee is under a duty to perform the work.

Having considered the relevant law and issues carefully, the legal position is as follows:-

1. Where the weather prevents an employee attending work

If an employee cannot make it to work they are not entitled to be paid provided there is nothing to the contrary in the employment contracthandbook. In addition if the employer’s custom and practice in previous years has been to pay this could also be relevant.

Some Employment Law practitioners are advocating that failing to pay employees in such circumstances would amount to an unlawful deduction from wages. We do not agree with this. Failing to attend work due to the weather preventing an employee’s attendance would mean that a wage/salary has not been earned for that day and therefore there is no wage due for that day. Consequently, the non payment of such we consider would not be an unlawful deduction from wages.

2. Where the weather has led the employer to close the workplace

In this situation, it is the employer that is deciding to close the premises and thereby cannot comply with the contractual obligation to provide the employees with work. It is our view that employees who are ready and willing to work must be paid. The situation may be more complicated if the premises are closed by the employer but the employee would not have been able to make it into work anyway. In these circumstances, we would recommend employees are paid.

3. Where an employee is absent as they need to look after a dependant

The bad weather can see parents/guardians needing to look after their children as schools or nurseries are closed or carers needing to look after young or adult dependants. In such circumstances employers must remember that employees have a right to take a reasonable amount of unpaid dependents leave to deal with a family emergency. The current weather conditions would certainly qualify but obviously the situation can change on a daily basis. The rules on this type of leave should be carefully considered on a case by case basis to see if the employee’s absence satisfies the relevant statutory rules.

An employer may think they are taking a benevolent view by simply agreeing to pay all employees as normal. Our view is that this could cause potential unrest amongst the employees who did battle against the elements and made it into work. ‘Why did I bother?’

It is advisable for an employer to explore any other options that might enable employees to get to work or to temporarily work elsewhere (e.g. at home, another site etc).

Every employer will need to consider their positions and adopt a standard approach that applies to all employees. Consideration on a case by case basis should be avoided as it could call into question the loyalty of an employee and lead to trust and confidence issues.

Our recommendation is that if an employer is not going to pay then the employee should be allowed to take the time as holiday or in the alternative given the option of making the hours up over the following weeks.

The key is to communicate clearly and reasonably with staff and thereby hopefully prevent too much unrest and any ‘surprises’ for staff when they receive their next pay slip!

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