Q&A: winter weather: what if staff can’t make it into work?

What rights do employees have if they are not able to make it into work due to adverse weather conditions?

Wintry weather has affected many parts of the country this month, with many schools and businesses falling victim to sudden seasonal extremes. What rights do employees have if they are not able to make it into work due to adverse weather conditions and what steps should employers take to deal with travel disruption?

1.  Do we need to pay employees who cannot get to work because of the bad weather?

Employees do not have an automatic legal right to be paid if they are not able to get to work because of bad weather, unless they can establish a contractual right to pay. Employment contracts are usually silent on this point. If that is the case, employees may argue that they have an implied contractual right to be paid if they can show an established custom and practice of continuing to pay employees in similar circumstances in the past, so this is something worth checking.

There are limited exceptions to this rule, for example where an employer provides transport to the place of work and this has been cancelled because of the weather and the employee has otherwise been ready and willing to attend work.

Employees may claim unlawful deduction from wages in the employment tribunal to recover lost wages. For this type of claim to succeed, they will be required to show that there has been a failure to pay in accordance with their contract of employment.

2. How much can be deducted?

On the basis that pay can be withheld, only one day’s pay for each day of absence. However, this may not be a straightforward calculation for all employees. If you have any concerns about the appropriate amount of a deduction please do not hesitate to get in touch for expert advice.

3. How can we deal with school/nursery closures?

Employees are entitled to take reasonable time off to deal with the unexpected closure of a school or nursery caused by bad weather, but do not have the right to be paid.

4. Should we just pay anyway?

Regardless of the legal position, employers may decide to continue paying employees even if they are not able to make it into work because of bad weather.  

Deducting pay in circumstances where employees are not able to attend work may damage productivity and morale in the long-term. There is also the possibility that employees may decide to call in sick, to take advantage of company sick pay, rather than honestly declare that they have not been able to make it to work. This would be a disciplinary offence, but it can often be difficult to establish evidence to support that this is what the employee has done. 

Paying employees who fail to attend work may, on the other hand, disadvantage those who make the extra effort to make it to work through the weather. This should be carefully managed to reduce the risk of resentment and the efforts of those who have made it to work should be recognised.

5.  Are there any other options? 

There may be other alternative options available which will allow employees to continue working despite the bad weather. It may be possible to allow office-based workers to work remotely from home, rather than require them to attend their place of work. For those who are required to attend work in person, options include allowing later arrivals; or allowing employees to work at other accessible sites closer to their home.

As an alternative to making deductions from pay, other possible options include offering employees the opportunity to agree to take paid annual leave; or making up the hours at a later date either by swapping shifts of working overtime.

Employers in the health sector (or those in any sector where continuity of service/production is important) will need to make arrangements to cover absent employees to ensure continued quality of patient care (or service/production). This may require employees who are able to attend work to work longer hours, with compensatory rest at a later date, whilst ensuring that this in itself does not amount to a risk to health and safety of the employees or patients.

6. Do we need a bad weather policy?

Now may be a good time to decide how to manage periods of disruption caused by adverse weather and other unexpected events. It may be sensible to implement a policy setting out how adverse weather conditions will be managed and what staff should do in the event of travel disruption, whilst ensuring all staff are aware of their responsibilities to attend work if they can and to notify you promptly if they are unable to make it. While a ‘bad weather’ policy isn’t an essential part of a core policy tool-kit, it will be a really useful reference point if adverse conditions hit suddenly and your organisation finds itself short-handed at short notice.

Ian Pace (ian.pace@weightmans.com) is an Associate in the Employment, Pensions and Immigration team and is based in Manchester. If you have any questions, please do not hesitate to contact Ian or speak to your usual Weightmans advisor.

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