Adverse Weather & Staff Attendance

Snow, ice and extreme temperatures continue to plunge the UK into chaos, meaning that employers have more people-related challenges than usual regarding absence and attendance, pay, leave, health and safety and the rights of their staff.

During severe weather, employees may be late or unable to get to work at all due to travel disruption. The following principles and practical suggestions will help employers to take a fair and reasonable approach where employees are late or unable to attend work in these circumstances.

Key Principles

• Employees are responsible for getting themselves to work*
• If the employee does not arrive at work, the employer does not have to pay them
• If an employee arrives at work late, the employer does not have to pay them for the hours not worked**

Practical Actions

Employers should consider the following practical options:

• In the first instance, if their usual method of transport is not available, ask employees to do all they can to use alternatives to get to work.
• Employees should work from home or at an alterative office/site that they can get to wherever this is possible.
• Allow employees to take any outstanding lieu time or flexi time if available.
• Allow employees to take the time off as holiday if available (although remember that employers cannot require employees to take holiday entitlement at short notice).
• If none of the options above are possible, then time off would be unpaid or, alternatively, it can be paid at the employer’s discretion.
• Where disruption lasts for a short period (i.e. a day or less) and all possible alternatives have been exhausted, some employers may choose to pay employees on a discretionary basis.

*This does not apply if the employer has a contractual agreement to provide transport for the employee to get to work. In these circumstances the employer may be have to pay the employees if it cannot get the employees to work.

**This does not apply if there is a contractual agreement to pay employees who are late due to transport disruption.

Adverse Weather & Staff Attendance - Frequently Asked Questions

Q. Is an employer required to pay employees who cannot make it into work as a result of severe weather conditions?

A. The employment relationship is based on the employer paying wages in return for work performed by the employee. If an employee cannot report for work because of adverse weather conditions, even where this is absolutely no fault of their own, the employee is not legally entitled to be paid unless their contract of employment specifies otherwise.

Many employers choose to pay employees in these circumstances anyway, despite not being legally obliged to do so, or come to some other arrangement - where the employee takes the time as annual leave, for example or makes up the hours at a later date. This will be up to the mutual agreement of the employee and employer.

It is advisable that employers have a policy in place for dealing with this type of absence and apply it equally and consistently throughout the workplace. If they do so all employees will be aware of how their absence will be treated in advance and accordingly a dispute over leave or pay is far less likely.

Q. What happens if an employer has to close its premises due to adverse weather conditions?

A. Where an employer has to close its premises as a result of unforeseen circumstances such as snow or flooding, and there is no work available for its employees as a result, this will result in a period of lay-off.  Unless there is a contractual right to lay employees off without pay, or employees expressly consent to being laid off without pay, they will be entitled to receive their normal pay for the duration of the lay-off.  If the employer fails to pay employees they may sue for damages, or claim unfair constructive dismissal (if they resign as a result of the non-payment) on the ground that there has been a fundamental breach of the contract of employment.  Employees may also claim that the employer has made unauthorised deductions from wages.

Even where an employee’s contract of employment contains an express contractual right for the employer to impose a period of lay-off without pay, or the employee consents to a period of lay-off without pay, he or she, subject to certain exceptions, is entitled to a statutory guarantee payment for any complete day of lay-off.

Guarantee payments are limited to a maximum of five days’ payment in any three-month period. If the employee is normally required to work fewer than five days a week, the entitlement cannot exceed the number of days that he or she is required to work per week under the contract.  The amount of guarantee payment per day is based on the employee’s normal daily rate of pay, but subject to a statutory maximum.

Q. Where there are school closures due to weather conditions and an employee has nobody to look after their child at such short notice, what are the implications for that parent?

A.  Employees have the right to unpaid time off to deal with emergency situations regarding their dependents. While this would not normally apply to a situation where the employee was required to look after their children as a result of not having any childcare arrangements in place, last minute school closures would be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off.  Again the employer would be entitled not to pay the employee for this day, but may choose to do so.

Q.  What are the potential health and safety implications for employers during adverse weather conditions?

A. Employers have a general duty under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work.  Adverse weather conditions should be the subject of a risk assessment process and the results should become the subject of policies and procedures to be actioned and communicated to employees.

It is important to bear in mind the potential health and safety implications where authorities are advising people to stay at home unless their journey is essential.  You may not want to put too much pressure on people to attend work as a potential liability may exist if employees are pressurised into travelling by car or foot when conditions are too dangerous.

Employers should take a balanced approach between encouraging employees to make all reasonable efforts to get into work and forcing them into a situation where they feel they have no alternative but to travel to work or risk facing possible disciplinary action.