Sandersons’ Survival Guide For Employers During the Adverse Weather Conditions  

How to deal with employee absences and other problems caused by “The Big Chill”

The worst of the snowfall from the last few weeks is disappearing or has already disappeared for many of us in the region.  However, weather forecasters say that we are in the middle of one of the coldest winters on recent record, so more snow and ice could be on the way.

Snow and ice spells a number of problems for businesses, some of which have legal implications.  This guide aims to cover the main legal issues arising from severe weather conditions.

Employee Absence

You’ve Heard of the “Duvet Day” but have you heard of the “Snowball Day” ?

Some employees may use the bad weather conditions as an excuse for not coming into work, and will decide to take what is being called a “Snowball Day” or two at the employer’s expense.

What can be done if you think so called “snowball days” are being taken?

Travel difficulties may be an excuse for not attending work. The first thing to remember is that travel is going to be more difficult for those who have greater distances to travel or who are coming in from more rural areas. If an employee tells you that their usual mode of transport is not available to them because of the weather, the best approach is to explore other options with them as follows:

1. Explore other modes of transport. If they usually drive but are unable to do so they may be able to use public transport if that is running, or come on foot.  One approach is to tell them you will monitor the situation through the day and that they should try to get in later on in the day if that is possible. On the face of it an employee’s contract of employment obliges them to attend work even in bad weather.  The employee must make a reasonable effort to get in. However, at the same time employers owe a duty of care to their employees not to put them at risk and they should not be placed under undue pressure to travel if it is not safe for them to do so.

2. Working from Home -  Employers who have invested in technology and equipment to allow employees to work from home will reap the benefits during bad weather periods like this one. It is worth asking employees to do what work they can from home if they cannot come in as many employees may be able to access their email from home or for example may have blackberries or lap-tops.

As regards travel difficulties it is going to be impossible for you as an employer to judge in each individual case whether that employee genuinely cannot get into work. Often the “official advice” from the radio and television is not to travel and you cannot expect your employees to necessarily ignore that advice. If there is just one day where an employee appears to have used the weather as an excuse not to travel there may well be more time and effort involved in investigating and taking disciplinary action than it is worth.  However, those employees that have managed to make it into work may well be unhappy if nothing is done about the “skivers” or their own efforts to get to work go unnoticed, so acknowledging the commitment of those who have managed to travel to work is worth doing. Those who managed to travel to work are not entitled to any additional pay or time off in lieu just because they made it in, but words of appreciation cost nothing.

If there are unwarranted repeat absences or a large number of employees using the weather as an excuse Sandersons can advise you on appropriate disciplinary action.

Legal Issues

When employees phone in to say they cannot get to work employers may be disgruntled at the costs of paying those employees, and may be tempted to take measures such as telling employees that they will not be paid if they do not attend work, telling employees that they will have to take annual leave if they cannot get to work or telling employees that they will have to make the time up if they don’t attend work

There are legal and contractual implications arising from all of the above measures, which are dealt with in more detail below and which you should in any event seek legal advice on before imposing them.

School Closures

If the employee’s reason for not attending work is that their child’s school has been closed due to the bad weather their employer cannot oblige them to attend work.    Under the Employment Rights Act 1996 employees have a statutory right to time off work to care for dependants because of the “unexpected disruption or termination of arrangements for the care of a dependant”.  This would cover the closure of schools, nurseries.

The employee is expected to tell the employer as soon as practicable and say how long they expect to be absent (which should not be any longer than is “reasonable”). What is reasonable will vary according the circumstances, it may just be long enough for them to make alternative childcare arrangements if it is possible for them to do so. According to the Employment Rights Act employees have no right to be paid if they exercise their right to time off under this provision- however, see the further advice below on pay during time off for bad weather.

Health and Safety

Employers have a duty to look after the health and safety of their employees, which includes ensuring that employees are adequately warm.  There is no minimum legal temperature for indoor workers except for the requirement for the temperature to be “reasonable”. Of course, what is reasonable will vary depending on whether the workplace is a factory, warehouse, office etc.  The guidance recommends a temperature of at least 16 degrees centigrade or at least 13 degrees centigrade if the work involves severe physical effort.

For those who work outdoors the employer is under a duty to provide adequate protective clothing and equipment to protect for example against hypothermia and frostbite.  The Health and Safety Executive website at www.hse.gov.uk provides useful advice about this and gives tips such as encouraging employees to drink warm fluids and take more breaks in a warmer environment.

Employees should also remember the safety of those employees who spend large amounts of time driving in company vehicles. They should ensure the vehicles are roadworthy and that they have advised the employees about items to take with them in the vehicle in case they become stranded (warm clothes, mobile phone, etc), if necessary providing those items for example ensuring that the vehicles have working radios that will keep the employees up to date with travel and weather bulletins. The employer should be prepared to cover the costs of employees who do become stranded away from home or away from any of the employers’ premises, and for example, need to check into a hotel if it is dangerous for them to continue their journey because of tiredness and the prevailing conditions. Undue pressure should not be put on drivers to make journeys in unrealistic time frames or on roads that are not safe.

How to Minimise the Cost of Employee Absences

One way of minimising the costs of absences is to refuse to pay employees for days they are unable to attend work due to bad weather.  Unfortunately there is no straightforward answer to whether this is a lawful response.  Contractually speaking if employees do not attend work you are not necessarily contractually obliged to pay them- it depends on the precise terms of the contract though, and you should seek advice.  However, the Employment Rights Act 1996 protects employees against unlawful deductions from wages and arguably a deduction in those circumstances is unlawful and an employee could claim to an employment tribunal. The claim would not necessarily succeed but the potential to challenge is there and with it the additional hassle that dealing with a tribunal claim would bring. (A deduction will not be unlawful if the employment contract allows a deduction in those circumstances – some contracts provide that employees will only be paid for the hours/days they actually work but with salaried employees it is not as clear cut.  Again, you should seek advice).   

From a practical rather than a legal point of view refusing to pay employees when it is very difficult or impossible for them to get to work is probably going to create poor morale and productivity and overall may not be worth the financial benefits obtained. If you feel very strongly that you are unable to pay employees for absence due to bad weather you should certainly make it clear to employees in advance that is your policy, and you should seek legal advice before imposing the policy.

As regards school closures, the statutory right to time off to care for dependents is unpaid according to the Employment Rights Act.  However, best practice is to treat your employees with and without children in the same way to avoid any potential sex discrimination claims. If you pay those employees who were unable to attend work because of travel difficulties but do not pay those employees who were unable to attend work because of the school closures you may face difficulties. 

If you have to close the workplace entirely at short notice due to bad weather you are not entitled to withhold pay from the employees unless their contract allows for lay-offs without pay or the employees agree to it.

Another way to minimise the costs of absences is to ask employees to take leave if they cannot make it into work.  If an employee phones in and tells you they cannot travel into work because of the weather and you suspect that is not a genuine reason a common approach is to respond by saying “that is fine, but you will need to request a days’ annual leave” after which you may well find that they suddenly manage to make it into work after all. In the same way, if an employee has no contractual right to be paid if they do not come into work you could remind them of that and give them the option of taking the day as annual leave. Caution should be exercised though. Unless the contract of employment contains the right of the employer to direct when holiday is taken employers cannot force employees to take a day’s holiday at that notice so you may wish to seek advice before pressing that issue if the employee objects to requesting leave. 

There is nothing in law to prevent you from paying the employees but requiring them to make up their time but this should be done consistently rather than applied to particular employees. If this is your policy you should make it clear in advance to all employees. In the case of genuinely terrible weather enforcing this kind of policy will no doubt create bad feeling among the workforce and lower morale, and may therefore not be worth imposing, you will need to use your discretion carefully before doing so.   

Precautions for the Future

As mentioned above technology can assist employees to work from home in the event of bad weather. This might be something to consider investing in for the future if the type of work is suitable.  Sandersons can advise on a suitable home-working policy which makes employees aware that they are expected to do a similar level of work from home, and which informs them that there may be monitoring of how their time at home is spent.   

Consider also investing in some legal advice on introducing an adverse weather policy or amending an existing absence policy so that employees know exactly what your position is in the event of bad weather as regards attendance and pay, and are made aware of their obligation to make reasonable efforts to attend work.

Finally, by way of precautions, swine flu may have disappeared from the news but it has not yet disappeared from workplaces this winter.  To avoid unnecessary levels of sickness absence encourage regular handwashing and provide suitable facilities to employees.  Encourage the use of tissues and their hygienic and regular disposal.  Send home those displaying flu-like symptoms at the earliest opportunity.  Up to date advice on measures to minimise the impact of swine flu is available on the HSE, HPA, Department of Health and NHS websites. 

Help and Advice

To finish on a more cheery note, the Chamber of Commerce reports that so far the number of employees staying at home as a result of the bad weather is relatively small.

However, if you have experienced any of the above problems or would like advice on taking precautions for the future in relation to bad-weather issues or indeed any other issues arising from employment matters or commercial disputes please do not hesitate to get in touch with us at Sandersons.

Contact: 

Sarah Coates-Madden scoatesmadden@sandersonssolicitors.co.uk,

Elaine Carson  ecarson@sandersonssolicitors.co.uk

Tel:       01482 324662

Fax:      01482 223110