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Antony Sendall: Winter is Coming – How to Manage the Snowflakes

With heavy snowfall already occurring or at least expected this week and with memories of the Beast from the East last year still causing shivers, many employers will be wondering what the legal position is about paying or even disciplining staff unable to get to work or who fail to attend, blaming the bad weather. Managing the disruption caused by the whole transport and education systems falling over just because of a few flakes of snow can be a major challenge for employers. Failure to pay employees in accordance with their entitlements may lead to claims for unlawful deductions from wages and potentially to claims of constructive unfair dismissal. Therefore, it is important both for employers and for employees to know where they stand.

As always, the starting point is the individual employee’s contract of employment  and any relevant policy incorporated into it or referred to in it. Many employers make special provision in their contracts for unusual weather or transport disruptions or they have a suitable policy which will provide guidance. Clearly such provisions and policies take precedence and should be followed. Thought should also be given to what has happened on previous occasions and whether or not a custom or practice has been established.

However, if there are no specific contractual provisions or policies there are still a number of things that need to be considered before an employer takes the step of applying the general principle that if an employee does not turn up for work, the employer does not have to pay wages:

  • Is the nature of the employee’s work such that he/she is able to work from home or from some other accessible location?
  • If the employee has young children and their school or nursery declares a ‘snow day’ forcing them to take time to provide or find emergency childcare, they may be entitled to time off, which may be paid or unpaid depending upon the terms of the contract. Technically, taking time off in an emergency to look after a dependent will only be paid if there is contractual provision to allow for it, but many employers prefer to take a more generous approach. Of course, ‘snow days’ tend to be declared at short notice, which will usually constitute an emergency, but in particularly prolonged circumstances, an employer might be entitled to take the view that the employee should be capable of making alternative arrangements for childcare. Many employers have a separate policy dealing with emergency time off to look after dependents which extends beyond inclement weather.
  • If an employee can’t get to work, but asks to take the day as annual leave in order to avoid being unpaid, an employer will need to consider whether or not it is a good idea to allow this. The likelihood is that the request will fall outside of the contractual or policy provisions for taking holiday, but before refusing an employer might want to consider whether there is an existing custom or practice that has allowed this to happen in the past at short or no notice.
  • From an employee relations perspective, it might be a good idea to take a flexible approach to paying employees on such days. If it is not their fault that they cannot get to work, employers may not wish to be seen to be effectively creating a pressure for their employees to take risks with their own safety by battling through dangerous conditions just to get to work.
  • Failure to attend work may give rise to disciplinary issues where the employer does not accept that the employee was genuinely unable to attend work. Clearly, any disciplinary steps need to be taken in accordance with any applicable disciplinary procedure and the ACAS Code of Conduct.
  • Sometimes the situation may be that the employer decides to close the workplace because of the weather. It may also be that there are health and safety reasons for suspending work, for instance because outdoor work becomes impossible or too dangerous. In such circumstances, it will usually be necessary to pay employees unless there are contractual lay-off provisions in the contracts of employment that deal with such a situation. In the case of lay-off there may well be issues as to entitlement to guarantee payments.

For the reasons set out above, any employer that does not currently have an applicable policy, should consider creating one. This is especially true of the employer is in a location that is likely to be particularly badly affected or is in a line of business where consistent high levels of attendance even in bad weather are critical.

 Finally, when disruption is forecast, it is always a good idea to send a reminder of the company policy to all staff. This avoids confusion, but also helps to avoids the undesirable temptation or feeling of compulsion to take risks with safety just to get to work. 

Written by Antony Sendall.

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