Written by Kathryn Roynon - original source
With snowfall forecast in many parts of the UK this week, some people may be looking forward to some winter fun. But adverse weather can give employers concerns about employee absence levels and whether or not to pay staff who are snowed in at home.
Our FAQ guide explains what employers need to know about adverse weather conditions and handling situations fairly.
Q: DO YOU HAVE TO PAY STAFF WHO ARE UNABLE TO GET INTO WORK DUE TO SNOW AND DIFFICULT TRANSPORT CONDITIONS?
A: Employees are obliged to attend the workplace unless they are sick, on holiday or on maternity leave etc. The onus is, therefore, on employees to come into work. Technically, this applies even in extreme weather conditions. Therefore, if the workplace is open and employees cannot make it into work because they are 'snowed in', one view is that you are entitled to treat their absence as unauthorised and are under no obligation to pay them.
However, if an employee's normal mode of transport is out of action due to severe weather disruption, such as cancelled trains, you may need to revise this view. First, you should encourage employees to explore alternative means of transport. However, employees should not feel pressured to risk their safety to get into the office so it may be sensible to consider whether employees could usefully work from home until the weather situation has improved.
If this is not a viable option, then the alternatives available are for you to advise employees that:
- any time off work in these circumstances will be unpaid (ideally, you will have a contractual provision to support this); or
- they will be paid but will be expected to make up the time at a later date; or
- they can request to take the time off as paid annual leave or as unpaid time off for dependent’s leave (e.g. if schools/nurseries close – see more about this below).
In practice, few contracts will state that employees who cannot get into work because of the weather will lose a day's pay. Employees have statutory protection against an unauthorised deduction being made from their wages without their consent and it is possible that an employee could try to claim that deducting pay in these circumstances is unlawful under these provisions, although the employer could reasonably argue that there was no entitlement to pay as no work was done.
You should, therefore, assess whether not paying employees would be in the best interests of your business. It may be that the financial burden to the business of paying staff in these circumstances is outweighed by the benefits that such a gesture would have on staff morale and productivity in the long run – especially if the snowfall is particularly heavy and it is impossible to get into the office.
Q: CAN YOU FORCE AN EMPLOYEE WHO CANNOT GET INTO THE OFFICE TO TAKE A DAY'S HOLIDAY?
A: No, this is unlikely to be permissible. Unless the employee's employment contract contains an express right for the employer to direct when their holiday is taken, employers cannot require employees to take a day's holiday without their consent.
Q: WHAT ABOUT STAFF WITH CHILDCARE RESPONSIBILITIES IF SCHOOLS ARE SHUT?
A: If schools or nurseries are closed or an employee's nanny is unable to make it to work because of the severe weather and there is no one else available to look after the children at such short notice, what are the implications for employers?
To avoid the office becoming a temporary crèche, there are statutory rules which allow parents to take time off when there is an 'unexpected disruption to childcare' and parents are protected from suffering a detriment for doing so. However, this leave is unpaid, unless your contract states otherwise. Whether or not you choose to pay your employees in these circumstances, it is essential that you treat all employees consistently.
Q: WHAT ABOUT ASKING PEOPLE TO WORK FROM HOME?
A: If employees are concerned that the conditions are not safe to travel to work or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees have remote access via laptops and other mobile devices.
However, even though they are at home, employees need to be clear that they must still work as far as possible (and not just watch TV or build a snowman!) A home working policy could be helpful here making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output.
Consideration should also be given to equal treatment if some of your workforce can feasibly work remotely whereas other colleagues, by the nature of their role, are unable to do so.
Q: WHAT IF AN EMPLOYEE COULD HAVE MADE IT INTO WORK BUT CHOOSES NOT TO?
A: If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally, this could be a disciplinary matter.
However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a 'snowball' day.
In a blatant or persistent case, you may, of course, choose to investigate the matter in the usual way and take any necessary action in line with the company's disciplinary policy. But do consider that you will need to treat people consistently.
Alternatively, when the initial conditions that made travel to work impossible have subsided, you could get in touch with employees to let them know that any further time off will need to be taken as holiday. You may find that once this has been communicated, employees suddenly start finding ways to get in.
Q: WHAT ABOUT MINIMUM WORKING TEMPERATURES? WHEN IS IT TOO COLD TO BE AT WORK?
A: For workers who work inside, certain regulations set out the rules on workplace temperatures. The general rule is that the temperature in workplaces should be at least 16 degrees Celsius. However, there is no legal minimum outdoor working temperature so employers need to rely on thermal risk assessments.
In extremely cold weather, outdoor workers face two major health problems: hypothermia and frostbite. There is therefore extensive HSE guidance about protective clothing for cold weather, health issues and management guidelines. (HSE suggests, for example, "allowing sufficient breaks to enable employees to get hot drinks or to warm up in heated areas.")
Q: WHAT IF YOU ARE FORCED TO CLOSE THE BUSINESS PREMISES DUE TO THE SEVERE WEATHER CONDITIONS?
A: If you choose to temporarily close your workplace at short notice because of unforeseen situations, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay.
If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an 'unpaid lay-off' clause in your contracts of employment, or the employees expressly consent to being laid off without pay.
There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments, and you should take professional advice before proceeding.
Q: SHOULD EMPLOYEES WHO ACTUALLY MAKE IT INTO WORK BE REWARDED?
A: Employees who have battled into work, often against the odds, may resent the fact that others made less effort, especially if, once they are in the office, they have to work extra hard to cover those who are absent. Ideally, the employees' efforts should not go unnoticed – though days off in lieu or other financial rewards are unlikely (in fact actively incentivising staff to come in when there are severe weather conditions could be seen as irresponsible on the part of the employer). Praise (a simple thank you can go a long way) and recognition schemes could be good options.
However, employers should carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home. Never ask staff to disregard official weather and travel advice. You should also consider whether you have enough staff on-site to operate safely, bearing in mind any relevant policies on staffing ratios or lone working: this may result in the only feasible option being to close the premises early and paying people for the rest of the day.
Q: HOW CAN I MAKE MANAGING EXTREME WEATHER SITUATIONS MORE STRAIGHT FORWARD?
A: It may seem that the UK is beset by 'unexpected' snowy weather or flooding every year. Therefore thinking ahead and putting in place a clear adverse weather policy could be a worthwhile investment. This will also help avoid confusion and conflict when the snowfall arrives.
Alternatively, you could amend your normal absence policy to cover such instances. The policy should contain guidance about workplace closures, disruptions to public transport, working from home and remote IT access, whether employees will be paid if they fail to attend work, disciplinary sanctions for 'snowball' days and whom employees should contact once they know they will be unable to make it in.
For more guidance on your specific circumstances or help with creating policies, contact Kathryn Roynon HR & Training Consultancy on 01249 701486.