The ‘snow bomb’ just before Christmas and the recent high winds highlighted to many employers the difficulties some of their workers had getting into work with our transport networks struggling to cope and schools being shut at short notice. There is no surprise that this has prompted a number of questions from organisations about whether workers who do not attend work are entitled to receive pay.
In short, the employment relationship is based on the employer paying wages in return for work performed by the employee, so if an individual does not work, usually, there is no obligation to pay.
As always, though there are exceptions to these general rules
Other than specific agreements which may be written into a contract of employment entitling the employee to pay, the only other clear exception to this rule is where a business is closed because of adverse weather, and it is not possible to carry out work at a different location. Examples include businesses such as leisure facilities, factories and retail. In such cases, employees should be paid their normal pay.
Full time, part time, permanent or temporary, the key is fairness and consistency
Legislation prevents the less favourable treatment of part time and fixed term employees and so permanent, fixed term, full time and part time employees should all be treated in the same way to avoid any claim of discrimination.
Fair treatment for casual and zero hours workers
It is also important to be aware of your obligations to casual and zero hours workers. Given the nature of these types of agreements, work is offered and accepted in smaller ad-hoc assignments and a worker will only receive pay for hours worked. However, if you pay your other employees who do not work, because you have closed the business due to snow for example, the same benefit should be afforded to a casual employee if work has already been offered and accepted on that particular day. Once offered and accepted, a contract exists and the worker has statutory rights including unfair deduction from wages and discrimination protection.
Morale and motivation
Employees who are treated well in these circumstances will be much more motivated and committed to a fair-minded employer than those who are penalised for circumstances beyond their control.
Health and safety
Whilst you normally have no obligation to pay, remember that you have a duty of care and so an employee should not feel pressured to travel in unsafe conditions.
Is win-win possible?
For many businesses, working from home is becoming an increasingly practical solution on days when travelling is not safe or possible. Employers should remember that there are some
insurance, security and health and safety issues they need to consider when this option is made available to employees.
Another option could be taking a ‘snow day’ as annual leave rather than withholding pay alternatively, making up the time could be another solution. Whilst this may not be workable for whole days lost, if an employee is late for work or leaves early you could agree that the employee will make up the time rather than losing pay.
Introducing an ‘Adverse Weather Policy’
It would be sensible to introduce a policy on adverse weather conditions, or amend your absence management policy. This will make it clear to your employees, in advance, of what will happen in future cases of bad weather. Make sure you are clear that employees are expected to make reasonable efforts to get into work (e.g. using alternative travel arrangements), but that they should not risk their safety to do so.
You should always be aware of the content of your contracts and your obligations in relation to pay. For example, if your contract contains a clause which states that the employee must attend work save for instances due to factors outside of their control, you may be obligated to pay normal salary.
Reducing claims for unlawful deduction of wages
As with any potential claim, the more you can minimise the risk, the better. Ensure that all decisions are fair and consistent, as well as in line with contractual agreements.
With January already threatening heavy winds to much of the UK, it is important to be prepared in advance. We would be happy to provide any advice you may require.
In the meantime, we wish you all a very safe and prosperous 2018.