Adverse Weather

Workplace Disruption Due To Adverse Weather

Adverse Weather such as flooding or snow can cause various headaches for employers including: health and safety concerns, absence or lateness due to travel disruptions or childcare problems due to the closure of nurseries or schools.

My Top Tips For Dealing With Workplace Disruption Due To Adverse Weather

This post considers the legal obligations and provides practical guidance on how lost time can be recorded and when it is appropriate to with-hold pay when employees are unable to attend work, or you decide to close your business, or part of it, due to the adverse weather.

Getting To Work

Although health and safety obligations do not generally extend to an employee’s commute, it is important to consider the risks posed to employees commuting in adverse weather conditions. Forcing an employee to make their way into work during bad weather could amount to a breach of the implied duty of trust and confidence. This could risk constructive dismissal claims if the employee resigns in response. More widely, it is a matter of good employment relations that employee’s safety and comfort is taken into consideration. In all cases, consider whether alternatives to workplace attendance are available. This might include working from home, swapping days in the office for those who work flexibly and offering the opportunity to take holiday.

Dealing With Lateness

As a general rule employees must be ready and willing to perform their duties at their contractual start time. So, where an employee does make it into work but are late you are entitled to treat the absence in the same way as any other period of unauthorised absence and not pay them.

I recommend investigating the reasons behind the lateness, for instance can they provide proof of the disruption and how did other employees who live in the same area manage?

An occasional incident of lateness for reasons beyond the employees’ control is a fact of life and a refusal to accept that and begin deducting pay would not be good practice and could result in bad feeling from your employees. I recommend leaving deductions to those employees who don’t turn up for work or you feel are abusing your policy.

School Closures

If schools are closed and parents do not have alternative childcare, they would be allowed to take a reasonable amount of time off to care for their child under the right to time off for dependants. The legislation allows an employee to take a reasonable amount of unpaid time off to care for dependants in an emergency; the leave can be approved retrospectively.

While, there is no obligation to pay the employees for that time off, a discussion with the employee would still be appropriate; those who have to take the time off to look after dependents must be given the same flexibility as those who are unable to travel to work.

The Time off for Dependents legislation would also cover the situation where your employee’s partner, or another dependent such as an elderly parent, is injured due to the adverse weather.

Alternatives to Attending Work

When employees can’t get to work during a period of adverse weather here are some alternatives you can consider to avoid pay becoming an issue:

Holidays	introduce a retrospective or on the day approval until the adverse weather passes. Adverse weather often occurs at short notice meaning enforcing holidays is unlikely to be an option as notice twice as long as the period of holiday to be taken would be required.
Proportioned Holiday	allow employees to take a day off their holiday entitlement and split the down into hours thus allowing employees to arrive later and leave early until conditions improve
Making Up Lost Hours	if you don’t currently have a flex system in place consider implementing a temporary system; ensure you stipulate the time frame by which any negative balance must be brought into a positive balance i.e. one month
Working from Home	not ideal for many jobs but where it is acceptable ensure that the type of work is agreed in advance so you know exactly what your employees are doing and what work, if any would need to be redistributed amongst those who can attend work
Unpaid Leave	where all paid options are exhausted allow the employee to take a period of time as unpaid

You may of course offer a combination of some of the above, so an employee might take a day off work which is split as half day of paid holiday and half a day of unpaid authorised leave.

To Pay Or Not To Pay

Generally speaking, employees are obliged to attend work and employers are obliged to provide work and pay the employee for the work they do. So, if employees fail to turn up for work, unless their contract indicates otherwise, the obligation to pay them generally falls away. But it’s not always that simple.

Employers should bear in mind that employees have a statutory right not to suffer unlawful deductions from wages. A deduction from wages will be unauthorised if there is no contractual basis for the deduction and could lead to an Employment Tribunal. However, if there is no guarantee of work (say, where there’s a zero hours contract), an employer will be in a stronger position to withhold pay.

Consideration has to be given to what is in the contract, the employee handbook (including any adverse weather policy), and previous custom and practice. If there’s nothing in the contract about pay in these circumstances, pay could be with-held as the employee is not fulfilling their contract of employment.

However, employers should consider the benefits of paying employees when disruption causes problems getting to work. For example, it could improve staff morale and help retain employees. Where there is a right to deduct pay you may consider exercising your discretion to pay in full or part or offering employees the option to take paid holiday as an alternative (although you can’t enforce holiday as notice of twice as long as the period of holiday would be required). When implemented, this should be applied fairly and framed as a goodwill gesture without setting a precedent.

The position differs for employees stranded on work trips, where employers must cover pay and related expenses. In these circumstances, employees should be paid throughout their absence and the business must cover any additional expenses.

Bear in mind the obligation of ‘trust and confidence’ to employees. That means, in short, not being wholly unreasonable. Bearing in mind the ‘do not travel’ advice, take care to ensure that you are not putting excess pressure on employees. Flexibility is the key.

Closing Your Business Due To Adverse Weather

Where you decide to close your business, or part of it, because of the adverse weather you are preventing the employee from working. With-holding pay when the employee is willing and able to work could bring risks of claims for unauthorised deduction from wages. The best=practice approach is to pay them as normal whilst you are closed. But before you do that check what alternative options are available to you such as working at a different location or from home.

Lay-Off

It is also worth reviewing contracts of employment for any right to lay-off. If you have the contractual right to lay-off then you could exercise that right if a snow-day forces the workplace to close. If an employee is ‘laid-off’ then they are not required to come to work. They will be entitled to guarantee pay (currently £38 per day) rather than their full normal pay for that day. This can limit the financial impact of any short-term workplace closure caused by the weather.

Enforced Holiday

If your employment contract does not contain an express right for you to enforce holiday on dates of your choice, you would need to seek the employee’s consent to enforce holiday. Even with the contractual right you would need to provide notice rather than enforce them retrospectively. The notice required is at least twice the length of the period of holiday, so two days’ notice would be required for one day’s leave making it impractical for a short notice closure due to adverse weather conditions.

Temperatures

In cold weather, even indoor working environments can face temperature issues. The Workplace (Health, Safety and Welfare) Regulations 1992 put an obligation under law for employers to maintain a “reasonable” temperature in the workplace – suggested by the Health and Safety Executive to be at least 16 C (or 13 C where the job involves significant physical exertion). Make sure that workplace temperatures are monitored regularly during cold spells. Consider relaxing any uniform policy to allow employees to wear warmer clothes where possible.

Dealing With Employees Who Take Advantage Of The Adverse Weather?

There will always be one employee who will try to take advantage of the weather to avoid coming in to work. If your suspicions are aroused investigate their story for instance delayed or cancelled trains or buses should be easily confirmed.

When you investigate a situation and feel an employee hasn’t told you the truth you may consider disciplinary action.

Before establishing Kea, I was working in Sheffield City Centre and took two phone calls, in close succession, from employees saying they couldn’t get into work. The first lived in Derbyshire, didn’t drive and the trains were cancelled, that was easily verified as true. The second had a flat in the city centre which I could see from my office window, I asked if they were at home or staying at a friends/relatives and they said yes I’m at home, I asked if they were injured or ill and they said no, so I told them to get to work.

Consistency

Treating employees consistently is the key to getting the best reaction from your staff, so keep this in mind when taking decisions regarding pay or other arrangements. By being more flexible and not just deducting pay, it is more likely that you will motivate staff and make up for lost time. Finally, don’t forget to recognise the efforts of those who do show-up, particularly if you have decided to provide paid leave to those who didn’t make it in.

Planning For The Future

Travel disruption is increasingly more common. It would be worthwhile taking this opportunity to consider amending HR policies and employment contracts to ensure clarity for both you and your employees.

Policies could be changed to provide flexibility for both sides on things like payment of wages, flexible and home working and holidays, where adverse weather (or unplanned circumstances) prevent employees attending work or cause you to take a reasonable decision to close the workplace.

Introducing An Adverse Weather Policy

An Adverse Weather Policy is a must as it removes any confusion about what you expect from your employees, help reduce confusion and ensure a consistent approach to managing adverse weather.

The Kea template Adverse Weather Policy includes:

In developing the policy I have considered all the different types of disruption that might impact a business and all the strategies that can be implemented to keep the disruption to a minimum. I have then arranged all that information into an easy to understand policy for your staff.

Library of Essential HR Business Documents
A subscription to my Library of Essential HR Documents provides a ‘Ready To Go HR Department’ that offers simple step by step advice to common HR problems. I like breaking down processes into simple easy to follow steps and have check-lists and templates for absolutely every HR situation you can think of. My easy-to-follow flow charts, meeting scripts, check-lists and template letters ensure everything is done properly, efficiently and compliantly in a professional, friendly and knowledgeable way.

When you join you will receive instant access to:

• Policies – clearly written and communicated policies are your best defence against tribunal claims.
• Flowcharts – provide step-by-step guidance to key aspects of HR.
• Forms and Letters – are templates with clear prompts where text should be added.
• Meeting Check Lists – provide a reminder of the essential points to be covered in the particular situation.
• Q&A’s: provide practical solutions to common HR situations.

The Leave and Time Off folder provides guidance and resources to help you manage common and unusual requests for time off work. For instance: holiday entitlement, sickness, carers leave, compassionate leave, jury service, time of for dependents and unauthorised leave. The Adverse Weather Sub-Folder provides a Policy which covers the situations where employees have difficulty traveling to work, where adverse weather develops during the working day and what will happen if you decide to close your business. There is a Managers Guidance document which aims to assist managers in implementing a sensible and caring approach to individual employee circumstances whilst balancing this against the need to maintain the provision of services. The Policy and Managers Guidance are accompanied by a set of FAQs and a series of template emails you can customise and send to your employees.

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