As we head into the winter months, adverse weather conditions, such as heavy snowfall, flooding and high winds are increasingly likely. This can cause significant disruption in daily life, but particularly when it comes to the workplace.
Employers can often find themselves wondering what to do if an employee, who is unable to work from home, cannot or refuses to attend work. Does an employer need to pay an employee who is unable to work? What alternatives can be offered as opposed to attending the workplace? Finally, how can the employer ensure the safety of its staff while managing workloads and delivering for its clients, customers or service users.
As ever, preparation is the key. In this article, we will explore how you can be aware of your obligations and get ready so that you don’t need to panic when the weather takes a turn for the worse.
An employer’s responsibilities in adverse weather
Employers have a duty to take ‘reasonable care’ to ensure the health and safety of their employees under statute, common law and as an implied term of the employment contract. This responsibility extends to protecting workers from adverse weather conditions.
The Health and Safety at Work Act 1974 places a duty on employers to conduct a suitable and sufficient risk assessment on workplace conditions and provide a safe working environment.
ACAS advises that employers should not encourage staff to travel when it is not safe, such as where heavy snow or ice means the Met Office issues adverse weather warnings telling people not to travel by car or public transport except for in emergencies.
The Employment Rights Act 1996 provides that a worker has the right not to be subject to a detriment by their employer for leaving or refusing to attend a workplace, or taking steps to protect themselves in circumstances of danger which the worker reasonably believes to be serious or imminent. This could cover travelling to work if, in the worker’s belief, it would be dangerous to do so.
When are employees required to attend work and how do I deal with non-attendance due to adverse weather?
One of the most common questions we receive during adverse weather conditions is whether employees have the right to refuse to attend work due to bad weather.
Generally, it is the responsibility of the employee to attend work unless:
- The workplace is closed: If the employer closes its premises due to weather conditions, employees will not be required to attend work. In such cases, employees may still be entitled to their normal pay.
- Commuting difficulties: If employees are unable to attend work due to disrupted transportation (e.g. public transport cancellations). Employers must be mindful that they have a responsibility for ensuring the safety of their employees, therefore if travelling may put the employee at risk, it may be reasonable for an employee not to travel to work.
- Disruption to childcare or other dependant’s arrangements: For example, if schools or nurseries close. Employees have the right to take a ‘reasonable’ amount of unpaid time off because of the unexpected disruption or termination of a dependant’s care arrangements. This can include closures of childcare providers and day centres, if no other arrangements can be made.
If an employer suspects an employee is using adverse weather to avoid attending work, they could consider disciplinary action. However, the employer will need to investigate the matter and should consider the employee’s individual circumstances, such as the severity of the weather and whether the employee made reasonable efforts to attend work. The employer should also be mindful of not subjecting the employee to a detriment (e.g. disciplinary action) where the employee was unable to attend work due to a risk to health or safety. We would highly recommend taking legal advice in such circumstances.
Do I have to pay an employee if they are unable to work because of bad weather?
As a starting point, employees have the right not to suffer unlawful deductions from wages, i.e. they are entitled to receive their pay or salary due under their contract.
Having said that, employees are generally required to provide ‘consideration’, i.e. work to receive their pay, so if they do not attend work, it is possible not to pay them. This will depend on the circumstances and the contractual arrangements.
Therefore, it is important that your contracts and policies and procedures address the issue of when pay is due, on what basis and what happens if you are unable to attend work because of travel disruption or adverse weather. This also should be linked to other policies such as flexible working and time off for dependants’ leave.
Practical tips for employers during adverse weather
- Review your policies and procedures: Employers should take proactive steps to assess and mitigate the risks posed by adverse weather and ensure that employees are aware of their rights and responsibilities during extreme weather events. We would suggest putting in place an adverse weather and travel disruption policy covering obligations for the employer and employee, travelling to work, alternative working arrangements, absence and pay, and school closures and other childcare issues. Make sure this is communicated to staff and understood.
- Develop a business continuity plan and conduct a risk assessment: Analyse risks to the employee’s operations, particularly if extreme temperatures are expected, and develop a strategy to deal with them. Plan work scenarios for how you can continue to meet operational demands and also consider how to communicate with staff about safety measures.
- Consider in what circumstances you will and won’t pay staff and ensure this is applied consistently: Review your contracts and procedures to ensure this is clear and take legal advice on what you can and cannot do. Given the legal uncertainty, consider a clause in the contract to specifically authorise deductions from wages.
- Consider employee relations. Not paying staff when they are genuinely unable to attend work may damage employee relations. However, paying absent staff when others have struggled to attend work may cause resentment. You may therefore want to consider other options, such as allowing employees to start working later, working flexibly to make up lost time, swapping shifts, temporarily changing duties or allowing emergency holiday to be taken.
- Remote work policies and flexible hours: Many employers allow for home working. However, other employers may require their employees to be in the office or workplace. In response to increasing weather-related disruptions, many employers have adopted remote work policies to ensure that employees can work from home during severe weather events if that is an option. Having a clear policy that allows for remote work during adverse weather conditions can help employers maintain productivity while ensuring that employees stay safe. However, employers must balance flexibility with business needs, ensuring that productivity is not compromised.
- Recording absences: Employers should manage attendance during adverse weather conditions carefully to avoid unfair treatment of employees. A clear and fair adverse weather policy should be communicated to staff in advance. Employees should notify their employers promptly if they are unable to attend work, and employers should consider each case on its own merits.
- Close unsafe workplaces: If the workplace cannot be run safely, it will need to be closed and you will need to send staff home. Failure to do so is likely a breach of health and safety.
How our employment law specialists can help
If you would like more information or advice in relation to implementing an adverse weather and travel disruption policy, reviewing your contracts of employment, dealing with staff issues, or any other employment law issue, please contact us or a member of our employment law team.
For further information, please contact:
Ruth Butt, Hill Dickinson
ruth.butt@hilldickinson.com
