What employers can do about bad weather absence
William Cowell, December 12, 2017
Carefully consider whether pay can or should be withheld if employees can't get to work
As Storm Caroline continues to batter the UK, getting to work can be impossible and many employees are finding that they cannot even attempt the journey. So how best can an employer address the situation?
Ideally employers should have contingencies in place to deal with a significant employee absence, in order to maximise business continuity. Such contingencies might involve a contract of employment carefully drafted to cater for such eventualities, a requirement to travel to a different office or workplace, and a policy of enabling employees to work from home.
But suppose the contingencies fail to adequately address the situation and business continuity takes a knock. What options are available to an employer then?
The employer should be wary of prioritising the need for business continuity at the expense of employees’ health and safety. Section 44 of the Employment Rights Act 1996 protects an employee from being subjected to any detriment by any act, or any deliberate failure to act, by his or her employer where the employee reasonably believed there was a serious and imminent danger as a result of the circumstances (circumstances the employee could not reasonably have been expected to avert), causing the employee to leave or refuse to return to the place of work. Further, section 44 protects the employee who reasonably believed there was a serious and imminent danger in light of the circumstances, such that the employee took appropriate steps to protect himself or herself or others from the danger.
There is also the issue of whether the employer can decide not to pay those employees who cannot make it to work. The first point to consider is whether the employee has a contractual right to be paid (which can be evidenced even by an implied right derived from a custom or practice). If so, section 13 of the Employment Rights Act 1996 states a deduction from an employee’s wages needs to be authorised by statute, by a contractual term notified to the employee in writing, or by the employee giving prior written consent. If the employee has no such contractual right to be paid they are not contractually entitled to be paid unless the employee has provided consideration.
Consideration might take the form of actual performance of the work by the employee (as in the case of a piece worker), or be evidenced by the employee’s readiness and willingness to do the work if he or she is able to. It is debatable whether, during unavoidable absence such as that caused by bad weather, an employee is ready and willing to do work without being present in the office. If not, the employee is not entitled to payment. It is likely a tribunal would look at all the circumstances, including the parties’ previous conduct in such situations, to see whether payment can be implied one way or the other. If pay can be deducted the employer is entitled to withhold one day’s pay per day of absence.
Even if the employer realises that it can deduct pay from employees who are unable to turn up for work, the next question is: should it? Might docking pay harm employee morale and backfire in the long term? Might it generate bad and unwelcome publicity that affects the company? Alternatively, might payment be divisive and not properly recognise the efforts of employees who struggled into work?
Faced with these questions, instead of paying absent employees the employer might prefer to suggest to these employees that the absent days are taken as part of their paid annual leave. However, the employer cannot insist such absence constitutes annual leave without providing advance notice that this be so, unless this notice is waived by way of a provision in the contract of employment, or the employee consents in writing to such a waiver. A further alternative might be for the employer and absent employees to agree that the lost hours be made up on other days.
As the above shows, the best way to cope with severe travel disruption affecting employees’ ability to get to work is by having a carefully and thoroughly thought-through contingency plan. However, because businesses are as variable and diverse as the weather there is unlikely to be one approach to adverse weather conditions that fits all.
William Cowell is a trainee employment solicitor at Winckworth Sherwood