Weather Related Absence – Ash update

Year Published: 2010

With the weather conditions this year, (first snow and ice and now volcanic eruptions) we are seeing an increasing number of enquiries with regards to whether or not employers are obliged to pay their employees who are unable to make it into or back to work.

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 set out below:

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.

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.

The only way for an employer to avoid payment would be to lay off the employee. This is only allowed if the employer has an appropriate clause in the contract of employment, otherwise the lay off will be a fundamental breach of the contract and could lead to a claim of unfair constructive dismissal.

Appropriate lay off provisions in the contract could allow an employer to lay off an employee for a maximum of four consecutive weeks OR for a maximum total of six weeks in a period of 13 weeks.

The employee would be entitled to a guarantee payment which is payable subject to a daily and weekly maximum. The current (April 2010) maximum per day is £21.50 per day and £107.50 per week.

A lay off in excess of four consecutive weeks OR for in excess of a total of six weeks in a period of 13 weeks would entitle the employee to resign and claim a redundancy payment.

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

The effects of the weather could 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. Enforced absence due to 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.

Can an employee take the absence as holiday?

Yes. Provided they have sufficient holiday entitlement for the current holiday year.

Depending on the length of the absence one result could be that an employee could use all their holiday entitlement for the year in one go. With the ash cloud this is likely to be the case where the holiday year of the employer runs from April to March. It could be a long time before the employee can have another holiday.

Practical Considerations

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!

Employers could consider allowing employees to ‘purchase’ additional holiday that could be repaid by allowing employees to work overtime that would then be unpaid. Alternatively, repayment could be by an agreed deduction from wages over a period of months. For example, if an employee was granted an additional 5 days holiday this could be repaid by deducting 1 day’s salary over a period of the next 5 months. This would alleviate financial pressures for the employee but may be too much of a cashflow problem for an employer in the current economic client. Employers should also put in place a written agreement for repayment in the event of an employee leaving employment before the end of the repayment period.

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