Your presents is required…

Released On 20th Dec 2022

With further rail strikes on the horizon and the mercury continuing to plummet below freezing, there is snow time like the present, to address some of the typical queries that employers have when dealing with the impact of travel disruption on the workplace.

1. Should employees who cannot get to work be paid?

This will depend on whether the employee’s contractual terms provide the right to be paid if they cannot attend work. This will include checking not only the employment contract, but any relevant policies, collective agreements (if applicable) and if there is a custom and practice of paying employees in such a situation. If there is no obvious contractual term or custom and practice then the general contractual position is that wages are not payable.

You may think the above is the final sleigh on this topic, but it’s not! This is because there is a possible exception that may apply to employees who can argue that their contractual right to be paid is based on their ‘readiness and willingness’ to work, rather than the actual performance of work itself. Salaried employees may fall within this category.

2. Should employers pay employees anyway?

Irrespective of the possible legal position, taking a more pragmatic approach can often be a better way for employers to stay off the naughty list. For example, ‘yule’ be sorry if by docking pay you damage employee relations and morale in the longer term. There is also a risk of being viewed as the ‘Scrooge’, with resulting bad publicity, especially if you are a larger employer.

3. Are there any alternatives? In a nutshell, yes!

Can any of your employees work from home instead? The answer is likely to be yes, for most employers, thanks to the impact of the COVID lockdown and resulting sharp increase in home/hybrid working. This will likely be the best solution to the problem for both employers and employees.

Can your employees work from another workplace? This may be a good solution, depending on the logistics, for employers who operate out of more than one site.

Can your employees take paid annual leave? This will only likely be suitable if the employee has annual leave left to take. If so, you need to seek the employee’s express written consent to this (an exchange of emails will usually be sufficient), to avoid falling foul of not otherwise giving the required legal notice to take holiday (i.e. 2 days’ notice would otherwise need to be given for an employer to insist that an employee take 1 days’ holiday).

Could employees be asked to make up the hours another time? Employees who do not wish to take annual leave, or who do not have leave entitlement left, could be asked to make up the lost hours on another day. The employer and employee would need to reach an agreement on this and for evidential purposes, this should be recorded in writing (again, an exchange of emails will usually suffice).

Is taking 'Time off for Dependants', appropriate: Employees have the legal right to take reasonable unpaid time off as dependants leave, should an unexpected event occur which disrupts a dependant’s care. For example, if a school closes and the employee does not have childcare. (Do check first whether you have a policy on this, and if so, whether that policy is more generous by allowing paid time off in such a situation).

Travel disruption, whatever the cause, is snow laughing matter. This is notwithstanding the fact that employers should also consider health and safety concerns, (most likely to be relevant if disruption is caused by bad weather). This is because employees (as well as workers) are legally protected from suffering a detriment should they reasonably believe that they would be in serious and imminent danger by attending work or by staying in work, (which could not be reasonably averted) and/or if they proposed to take reasonable steps to protect themselves or others.

Additionally, employers may want to consider putting in place a travel disruption/adverse weather policy explaining how it will deal with such situations and ensuring that staff are aware of their responsibilities.

If you would like further advice on this topic, please do not hesitate to get in touch with a member of the team.