Adverse weather: do employees have to come in? by Emma Hamnett, Senior Associate, Clarke Willmott LLP on 08-Nov-2013

Adverse weather and other disruptions can cause problems for business. Emma Hamnett, Senior Associate at Clarke Willmott LLP, discusses how employers can approach the difficult subject of employee absenteeism.

As the nights draw in so does the weather. With adverse weather affecting most of the UK recently, employers are likely to face the first of many spells of employee absence this winter caused by wind, storms or perhaps snow. So, what do employers need to know about adverse weather conditions and managing employee absence during these frosty times?

Do employees have the right to be paid if they cannot get to work for reason of bad weather?

The answer is probably yes, but there are ways an employer can manage the situation proactively.

Employees must attend the office unless they are unwell, on holiday, on maternity leave or on another period of authorised absence. The starting point, therefore, is that employees still have to come to work even in extreme weather conditions. If the office or workplace is open and employees cannot make it into work because of 'adverse weather', employers are entitled to treat the absence as unauthorised.

However, if the employee cannot make it to work due to severe weather disruption, employers may need to revise this view by encouraging employees to explore alternative means of transport. It may also be sensible to consider whether employees could usefully work from home until the weather situation has improved.

If this is not a viable option, then the alternatives are to advise employees that:

• any time off work in bad weather will be unpaid (employers must have a contractual provision to support this to avoid claims for unauthorised deductions from wages);
• they can request to take the time off as paid holiday or as unpaid time off for dependent’s leave (eg. if schools or nurseries close); or
• they will be paid but will be expected to make up the time at a later date.

In reality, few contracts will state that employees who cannot get into work because of bad weather will lose a day's pay and for larger employers the burden of monitoring and putting into effect a practice such as this this may start to outweigh the benefit. Employers should also consider the impact of deducting pay on productivity and employee morale in the long run in these circumstances, especially if the weather makes it impossible to get to the workplace or the workplace is closed through no fault of the employees.

Employers also cannot force their employees to take annual leave unless this is expressly provided for in the employment contract. If it is not expressly provided for, taking the time as annual leave can only be done with employee consent.

Any practice of deducting pay must be applied consistently and fairly. Employers should be mindful of indirect sex discrimination in this practice, for instance, female employees may be able to show that this practice impacts them more than their male counterparts as they have primary caring responsibility for children and / or dependents.

Employers should therefore weigh up the impact of deducting pay in these circumstances and on balance, our view is that the most straightforward practice is probably to pay employees but have a robust absence management policy in place (see below) so that the employer’s gesture is not abused.

Do employees have the right to work from home?

No, not unless they are homeworkers or it is a contractual provision.

If employees (or indeed employers) are concerned that the weather conditions are dangerous or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should stay at home and do what work they can from there. This is easier now than ever before as more office workers have Blackberries or similar devices and the ability to log on from home. For many industries or employees however, home working is simply not an option.

If home working is an option for your business employees need to be clear that they must still work as far as possible. A working from home policy would assist employers here in making it clear the employer will, if necessary, monitor output and that working from home should not be abused and, if it is, this could result in disciplinary action.

What if schools close and employees need to look after a child?

Parents are entitled to take time off when there is an 'unexpected disruption to childcare' and parents are protected from suffering a detriment for doing so.

If alternative childcare arrangements cannot be organised in these circumstances, this could be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off. Time off to care for dependents and emergency leave is unpaid but not all employers take this approach, instead choosing to exercise discretion and pay the employee.

An employer does not have to permit an employee to bring their child to work with them. Indeed, most employers would, we imagine, be keen to avoid the workplace turning into a crèche! And indeed some workplace environments would not be conducive to this practice (or indeed safe).

If an employee asks to bring their child to work, the practical solution is to allow the employee to remain at home either on discretionary paid or taking the day as unpaid leave to care for a dependent. Again, employees should be treated consistently in these circumstances with one rule for all.

What if you believe employees are taking a 'duvet day' and falsely blaming the weather?

This should be dealt with under the absence management policy and it is important to have a robust policy in place. As the winter gets underway in the UK now is the time for employers to start keeping a watchful eye on suspected malingering employees so that records can be kept from the outset and the absence management procedure invoked where necessary.

For more information about Clarke Willmott LLP, please visit: www.clarkewillmott.com

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