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

Come hell or high water

Last week, my penchant for weather watching reached a new (and as my husband put it "verging on the obsessive") level.  Unfortunately the reason for my fixation with the weather channel app on my phone was not an impending sunny holiday but simply that we have recently relocated to a small village by the Thames.  A place which seemed idyllic as we moved in on a hot August bank holiday with visions of days spent messing about by the river reminiscent of scenes from the Wind in the Willows.  Fast-forward to a very wet and miserable January and this idyll has been somewhat tainted by the new "f-word" in our parts…the Floods.

The commuter misery that has been the result of a bit of a rain is quite astounding.  On my way home one night, I arrived at the station to face a very sorry looking departures board with all my usual options having been cancelled.  I was obviously somewhat annoyed in that having battled to get to work – I was being thwarted on the return leg.  I am rather lucky to have a very understanding nanny but it got me thinking that not everyone enjoys such flexible arrangements and the position for employers can be equally frustrating when employees get stuck at home.  Given that the floods will no doubt be followed by an arctic blast, I thought it would be timely to review the ACAS guidance regarding these issues and provide some general advice:

  • Have a policy - It is important for employees to know exactly where they stand when issues arise which may present challenges in getting to work (or indeed prevent them from travelling at all).  Issues to consider include how to deal with pay, absence and communication. 
  • Pay – The question of whether an employee is entitled to be paid during a period of absence caused by travel disruption is often asked.  Depending on the circumstances causing the absence and the contractual position, some employers simply continue to pay all staff whether present or not (treating the absence as "special leave"); some offer such absence to be covered by annual leave (but note the notification requirements of the Working Time Regulations) and/or be treated as unpaid leave.  If making deductions from pay ensure that you have the contractual right to do so. 

However you choose to deal with the issue, ensure that you are consistent but maintain the ability to be flexible (for example a situation where entire networks are suspended might be treated differently to travel simply being delayed).  In addition, remember that unwritten "practices" can become "contractual" if they are treated as the norm – so don't be complacent and decide how you want to deal with the issue sooner rather than later.

  • Think about alternative working patterns – Often during adverse weather conditions, employees are not entirely prevented from travelling, but may be late or need to leave early.  Think about whether working hours could be temporarily altered during such periods.  Any policy should set out how this will be addressed whilst ensuring business continuity.  The ACAS guidance on this point recognises that the handling of these episodes can be an opportunity for an employer to enhance staff morale and productivity.  A case of "you scratch my back and…?"
  • Use IT where possible - Think about whether it is possible for employees to connect to the office network to enable them to work from home.  With the use of mobile technology increasing in the workplace, many employers might be able to achieve a seamless transition for the short-term (whilst recognising that in many industries there is no substitute for face-to-face interaction in the office).
  • Be fair – It can be frustrating for employees who have struggled in to work only to end up covering for employees who haven’t made it to the office.  Obviously in some cases it will be impossible for an employee to get in (and/or unreasonable for an employer to expect an employee to risk their safety or spend hours and hours simply travelling to and from work) and often a flexible attitude needs to be adopted.  However, it may be worth thinking about ways to motivate staff who do get in - at the very least this should not go unnoticed by managers.
  • Dependants - If schools are closed and parents cannot get in to work as they have no alternative childcare arrangements, this may qualify as an emergency situation under the statutory right for unpaid time off to look after dependants. The right is to take a "reasonable" amount of time off to take action which is "necessary", and this will always depend on the circumstances.  In such circumstances, an employer would be unable to require an employee to take the time as annual leave.  Again, any policy should address this.    

As "climate change" seems to be a hot topic for current debate there is no doubt that extreme weather conditions seem to be occurring more frequently.  As such, adopting a policy dealing with the issue and communicating it to employees should be a priority for HR teams.  On a slightly cheerier note, I thought I would leave you with a quote from AA Milne – there is after all always a brighter side!

“It's snowing still," said Eeyore gloomily.

"So it is."

"And freezing."

"Is it?"

"Yes," said Eeyore. "However," he said, brightening up a little, "we haven't had an earthquake lately.”

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