The recent bad weather has caused a considerable amount of
disruption to everyone and many employees have been unable to make
their way to work. Reports indicate that about 20% of the workforce
have not attended for work recently. It therefore seems appropriate
to comment on the employment law issues which might arise from
employees absent from work. The same considerations apply in other
situations where employees are unable to get to work, for example,
where they are unable to travel to work due to strike action or, as
happened earlier this year, volcanic ash preventing them from
returning from holiday.
The key issue is likely to be whether or not the employee is
entitled to be paid for such absences. The legal position in
general is that an employee is responsible to get to work and if
they are unable to do so because of bad weather, or for some other
reason, they are not ready to work and are not, therefore, entitled
to be paid. It does not matter that it is not the employee's fault
that they are not able to get to work. However, an employer ought
to check contracts and employment policies to identify whether the
employee has the contractual right to payment in these
circumstances. It is also possible that the employee might be
entitled to payment through custom and practice where the employers
have previously paid wages to employees who have not been able to
get to work due to circumstances outwith their control, and this
then becomes an implied term of contract.
Where an employee is not entitled to payment for days when they
cannot travel to work the employer should also take into account
the potential negative impact on staff morale and productivity in
failing to make these payments. Some pay the days almost by default
on the basis that it causes a greater difficulty in calculating
sums individually. Another alternative might be to allow the
employee the option to deduct any such days from their annual leave
entitlement so that they would be paid for these days, or to
nominate these days as leave under Regulation 15 of the Working
Time Regulations 1998, which the employer can do itself whether or
not the employee
wishes that.
An employer should not seek to discipline an employee for these
types of absence, where truly caused by circumstances which are
outwith the employee's control. Attempting to do so will almost
certainly be viewed by an Employment Tribunal as unfair. There are
some employees however who take advantage of the general situation
and do not attend for work, when they could. That is different, and
can be grounds for disciplinary action.
As these situations can arise fairly frequently, particularly
over the winter months, it may be worth considering introducing a
policy setting out clearly what will happen in these situations.
Ideally the policy would cover the following:-
• When the employee will be paid for such absences (if at
all).
• Details of the reporting procedures, timescales and the
obligations of the employee to keep the employer informed of the
situation.
• Provisions relating to the need for the remaining staff to be
flexible and to assist in minimising disruptions.
• A reminder that it is the responsibility of all employees to
take reasonable steps to get to work.