With the extreme weather conditions over the last few years and more recently high winds and flooding, 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, but what do you do when the weather gets in the way?
Where the weather prevents an employee attending work
If an employee cannot make it to work because of the weather, they are not entitled to be paid, provided there is nothing to the contrary in the employment contract/handbook. In addition, if the employer’s custom and practice in previous years has been to pay, this could also be relevant.
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 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.
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 employees should be 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.
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 dependent
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 dependents.
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.
An employer may think they are taking a benevolent view by simply agreeing to pay all employees as normal. This could cause potential unrest amongst the employees who did battle against the elements and made it into work causing them to adopt the attitude of ‘why did I bother?’ and discouraging them to make the effort to come in the following day if the weather is equally as bad.
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.
If an employer is not going to pay then the employee should be allowed to take the time as holiday or in the alternative be 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 five days holiday this could be repaid by deducting 1 day’s salary over a period of the next five months. This would alleviate financial pressures for the employee but may be too much of a cash flow 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.
For further information on employment issues, please contact our employment team on 0161 475 7666.