Talking Point: Snow Joke

16th Dec 2010 Midlands

Talking Point: Snow Joke

In a room full of managers and business owners on cold snowy days like these the question most asked of the employment team at Smith Partnership is whether they have to pay those employees who do not make it into work as they are snowed in. In this harsh weather “snow days” have overtaken commonly known “duvet days” as a reason for increased employee absences.

In January 2010 it was reported that up to 124 million hours were lost in a single week because of adverse weather conditions at that time and many are saying that the current weather the UK is facing is far worse than that.

I would suggest that due to the increase in adverse weather conditions it would be sensible for employers to incorporate a severe weather policy into their employee handbooks (or incorporate this within current absence policies) to set out clear guidelines to staff on what to do in the event of work place closures, disruptions to public transport or the need to work from home.

Employees are obliged to attend the office unless they are sick, on holiday or on maternity leave etc. The onus is, therefore, on employees to come into work. Technically, this applies even in extreme weather conditions. Therefore, if the office is open and employees cannot make it into work because they are 'snowed in', one view is that you are entitled to treat their absence as unauthorised and are under no obligation to pay them.

However, if an employee's normal mode of transport is out of action due to severe weather disruption, you may need to revise this view. First, you should encourage employees to explore alternative means of transport. However, employees should not feel pressured to risk their safety to get into the office so it may be sensible to consider whether employees could usefully work from home until the weather situation has improved.

If this is not a viable option, then the alternatives available are for you to advise employees that:

- Any time off work in these circumstances will be unpaid (ideally, you will have a contractual provision to support this); or

- They will be paid but will be expected to make up the time at a later date; or

- They can request to take the time off as paid annual leave or as unpaid time off for dependant's leave (e.g. if schools close – see more about this below)

In practice, few contracts will state that employees who cannot get into work because of the weather will lose a day's pay. Employees have statutory protection against an unauthorised deduction being made from their wages without their consent and deducting pay could potentially be challenged as unlawful under these provisions (although the employer could argue that there was no entitlement to pay as no work was done.)

Unless the employee's contract contains an express right for the employer to direct when their holiday is taken, employers cannot force employees to take a day's holiday without their consent to cover such periods of absence. However, if the adverse weather causing the absence subsides it may be worthwhile an employer contacting those employees who are absent stating that due to the improved weather and travel conditions any further absences will be classed as holiday. This is likely to encourage a return to work.

Arguably, a school closure is not the same as a disruption to 'childcare', however, if the school closure was announced first thing in the morning and alternative childcare arrangements cannot be made, this could be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off. Strictly, the day would be unpaid but it is important for employers to adopt a consistent approach to the policy adopted for employees without children.

If work from home is possible for a particular role then it would be sensible to allow employees affected by adverse weather this option however Louise recommends that a clear work from home policy is in place with guidelines of expectations regarding productivity/work done and warn that this will be monitored if necessary.

If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally, this could be a disciplinary matter.

However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a 'snow' day.

If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay.

If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an 'unpaid lay-off' clause in your contracts of employment, or the employees expressly consent to being laid off without pay.

There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments warns Louise, and you should take specialist legal advice before proceeding.

For those employees who have battled their way into the office employers should carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home. Never ask employees to disregard official weather and travel advice.

Louise Haward, employment lawyer at Smith Partnership

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