What can you do if you, or your employees can’t get to work because of the snow?
With winter looking like it has finally arrived, snow has caused disruption all over the Highlands. This means that some employees simply cannot make it to work. Does employment law hold any of the answers?
Where do we start?
As with most potential disputes, the best place to start is with what is in writing between the employers and employees. This normally takes the form of an employment contract and accompanying policy documents.
The terms of employment contracts form the basis of the agreement between the employer and employee. There may be room for manoeuvre in the terms included. For instance the contract may provide that a certain number of hours are worked in a week but not necessarily specify when – this could provide room to vary hours without amendments being made.
Equally an employer may have a flexible working policy which is designed, or could be adapted, to cover circumstances such as the inconvenience caused by the snow.
But we have always done this before?
Aside from contractual terms certain clauses may be inputted by way of custom and practice.
An example of this would be where an employer has routinely dealt with absences in a certain way. If employees are used to being treated in a certain way, they might be entitled to expect to be treated in that way. This is what is sometimes known as an “implied term”.
Care should be taken when acting on the basis of implied terms. Employers should take care to deal with matters on a consistent basis so that they do not open themselves up to a potential discrimination claim.
Can an employer deduct pay if an employee is late?
Generally speaking it is unlawful to make a deduction from a worker’s wage unless the deduction is authorised by statute, by a contractual term that has been notified to the worker in writing or by the worker having given the employer prior consent.
Should employers pay staff anyway?
Before any deduction is made employers may wish to consider the benefits of paying wages where an employee has been delayed through no fault of their own. A bit of leniency can improve morale and productivity in the workplace but it can also have the opposite effect where workers, who are unaffected by the adverse weather, feel that they are losing out.
“My child minder can’t make it today!”
The snow may lead to instances where childcare is not available and as such an employee may have a right to take leave to care for dependents. The right to dependants leave can be statutory or contractual. If there is no contractual right, statute provides the minimum right, which is that an employee must be allowed dependents leave but that that right is unpaid.
In these circumstances an employer cannot force an employee to take paid leave and must not subject them to a detriment because of choosing to assert that right to take unpaid leave.
For statutory purposes the right to time off is limited to dependants. Dependant is defined as a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees).
Thinking “out of the box”?
It may be open for employees and employers to consider what alternative arrangements they can make between them.
For instance it may be sensible, where circumstances allow, that an employee is posted to another office to avoid commuting or allowed to work from home.
Equally there may be an agreement that where there is a shortfall in hours that those hours are made up. If there is a flexi time scheme in place this may already protect against the difficulties brought by adverse weather.
Guidance for employers
Develop a strategy for dealing with the inconvenience brought by the adverse weather
- Communicate how you will deal with any disruption to your employees
- Be consistent in approach
- Listen to suggestions made by your employees – they may be inconvenienced just as much as you!
Guidance for employees
Take note of your employers policies and what is expected of you
- Communicate your difficulties to your employer
- Don’t assume your right to be paid is absolute – because normally it is not!
In other words, there may be a need for some sensitivity from both sides on what is expected of the other. Employers should ensure that they deal with any issues that arise in a consistent and sensible manner. Employees need to do their best to get to work on time.
If you feel that you would like advice on any of the points raised in this note please contact us on 01463 239393 or alternatively via email employment@macandmac.co.uk
