WorkLife

Our thoughts on the world of employment law - and beyond.

Oh, the weather outside is frightful; but a day off is so delightful…

The snow/torrential rain is falling.  It is lunchtime and the office is still only half full.  What is a manager to do? Following on from Claudia Rooney’s recent post on issues arising during adverse weather conditions. I set out below some answers to common questions asked on this topic:

 

1.  Do I have to pay absent staff?

The starting point must always be to refer to your company’s relevant policy, if one exists.  As ever, a policy is only as good as how it is put into practice, so you should make sure that any policy is implemented consistently.

The basic legal position is that an employee is not entitled to be paid for work they have not done.  As fun as playing the panto villain can be at times, it does seem to me that taking such a strict line has the potential to be counter-productive in the long run.  Therefore, it is essential that you as an employer consider and settle on your approach ahead of time and, crucially, ensure that all managers with decision-making responsibility in this area are aware of that approach so as to avoid inconsistency.  You should also communicate your proposed approach to staff so as to minimise disagreements after the event.

 

2.  Can I make staff take paid annual leave to cover their absence?

Strictly speaking, in most circumstances employers will not be able to force staff (whether on the day or retrospectively) to take paid annual leave to cover their absence: the statutory position is that, if a member of staff is to be expected to take part of their statutory holiday entitlement to cover weather-related absence, they must be given notice of this requirement of at least twice the length of the proposed holiday.  On the other hand, if the alternative to using up annual leave entitlement is not being paid, I suspect most employees may well agree to use up some of their annual leave.

In the event that a member of staff requests of their own accord that an absence is treated as paid annual leave, whilst the first step ordinarily would be to check that member of staff’s contractual provisions relating to annual leave, it does seem sensible to show some flexibility when considering that as an employer effectively you will have covered your losses by allowing such a departure from normal practice. 

 

3.  How should I treat members of staff who miss work because of an emergency?

Subject to their compliance with the relevant notification procedures, a member of staff who is (for example) a parent whose child’s school has been closed or someone who has caring responsibility for a disabled relative whose carer has not been able to get to work, will have the right to unpaid time off in these circumstances.

 

4.  Do I have to pay staff if the office is closed?

As an office closure denies staff the opportunity to attend work even if they are willing and able to do so, unfortunately the employer will normally have to shoulder the burden and pay them for any absence imposed in this way.

 

5. Can I force my staff to come into the office where they propose not coming in?

Any undue pressure on staff to attend work where weather conditions make it unsafe travel could leave you potentially liable for any accidents that occur.  It is therefore key to balance your operational requirements with your duty of care towards staff.

On are related issue, your health and safety obligations as an employer will require you to ensure a safe working environment, which will include making any parts of your premises located outside fit for use (or closed, if this is not possible).

 

6.  Can I discipline staff who I believe are using adverse weather as an excuse when they can actually get into work?

In such circumstances, you are entitled to treat the absence as a potential disciplinary matter, to be addressed in accordance with your disciplinary procedure.  However, in light of the potentially difficult evidential issues involved, this is a category of disciplinary action which requires particular care, and it is clearly critical that the member of staff is given an opportunity fully to explain their position before any substantive decisions are taken.  It is also vital that you take a consistent approach to dealing with such cases given that addressing this issue is likely to be particularly contentious (not least among staff who have braved the weather).

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