This business development briefing highlights some practical steps that a business can take to reduce the risk of adverse weather affecting an employee’s travel to work. An Employment Appeal Tribunal (EAT) decision provides a reminder to businesses to ensure that they have a clear adverse weather policy in place and that employees are kept as up-to-date as possible regarding any altered working arrangements during periods of adverse weather.
What disruptions may prevent employees getting to work?
There are several instances in which employees may be prevented from getting to work by major disruptions. The main examples are:
- Weather. Extreme adverse weather conditions (usually heavy snow and ice) can cause road closures and public transport delays or cancellations.
- Strikes. Industrial action on public transport networks such as trains, buses and tubes can prevent some employees travelling to work and make it a very difficult or lengthy journey for others.
- Flight cancellations or delays. Employees are sometimes delayed returning from holiday, requiring an extra day’s annual leave. However, more significant problems occur when airline industry strikes or other major incidents, such as terrorism, cause widespread delays lasting days or sometimes even weeks.
What are the alternatives if an employee cannot get to work?
Homeworking and other workplaces
Consider whether working from home is an option for some employees. Employees should plan ahead and consider taking work home if disruption is forecast. If the business operates at more than one site, consider sending employees to a more accessible site nearer to their home.
In some cases, depending on the weather conditions or the number of stranded employees, it may not be economical or even safe for a workplace to remain open. Any employees with contractually guaranteed hours or salary will still have to be paid if they are ready and willing to work, unless the business can rely on contractual terms such as a lay-off clause.
Paid annual leave
The business could offer its employees the opportunity to take the absence as paid annual leave, assuming they have sufficient entitlement remaining.
Time off for dependants
Employees have a right to take a “reasonable” amount of time off because of the unexpected disruption or termination of a dependant’s care arrangements. Bad weather or other disruption might lead to a school or nursery being closed with the result that an employee has to take the day off to look after children in any case. In these circumstances, a business cannot force the employee to use up their paid annual leave entitlement, and must not subject the employee to any detriment as a result of exercising this right.
Making up the hours
A business could ask employees who do not want to take annual leave or unpaid leave to make up the lost hours on other days. If the business operates a flexi-time scheme or an annualised hours scheme, the terms of the scheme may already allow this sort of solution. Even where there is no such scheme, the business could reach an agreement with its employees over the lost hours.
Time-limited paid leave
While a business may baulk at the idea of giving unlimited paid leave to stranded employees, an alternative is to give limited paid leave, after which employees must either take unpaid leave, make up the lost hours, or agree to count it against their paid annual leave entitlement. For example, the business may limit paid leave to one or two consecutive days’ absence, or (for instance) three days in any year.
Practical steps to help reduce business risk
- Develop a business continuity plan by analysing the potential risks to the business (and their likely effects), and formulate a strategy to combat them. Plan for worst-case scenarios and the plan should work for more minor disruptions.
- Given the potential for legal uncertainty, consider including a clause in employment contracts to specifically authorise deductions from wages.
- Implement a policy setting out how the business will deal with adverse weather and other major travel disruptions.
- Publicise the policy internally before any likely period of travel disruption, and ensure that all staff and managers are aware of their responsibilities.
- Decide whether employees will be paid if they cannot make it to work, and ensure any guidance is applied consistently.
Consider the employee relations angle. Deducting pay may harm morale, but paying absent employees may also lead to resentment by those who struggle in, unless they feel their efforts have been recognised in some way.
Please note that the above does not constitute legal advice.