It’s snow joke! Winter weather and employee absence

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Posted in:HR and Employment|January 8, 2013 | Join the mailing list

The New Year often brings with it an increased risk of wintry weather. After the cold spells of recent years, which saw heavy snowfall and freezing conditions, it’s important to learn from past experience and for employers to make every effort
to prevent similar disruption to their businesses this time around.

Winter weather can cause problems for businesses, such as when:

• existing bad weather conditions prevent employees from getting to their place of work; or

• the weather gets worse while employees are at work, so that delaying travelling home until their normal leaving time would be unsafe; or

• employees are unable to attend work because of childcare commitments, if, for example, their child’s school or nursery closes and they are not able to make alternative arrangements.

One question that often arises is whether an employee is entitled to be paid their normal pay on a day when, through no fault of their own, they can’t get into work because of the weather.

By law, an employee is only entitled to be paid if they are willing and able to work. If they are prevented from coming to work (even if the reason for this is the weather and so is not their fault), then they are not able to work and so,
unless their employment contract states to the contrary, they are not entitled to be paid.

However, if an employee can’t come to work because of the weather and then finds, to their surprise, that they are not going to be paid for this period of absence, that could well lead to feelings of resentment and to difficulties in the
employer/employee relationship. It’s therefore far better, at the very least, to alert employees in advance to the fact that any absence due to poor weather will be unpaid, and this can be done by means of having an "adverse weather policy", which you have
drafted and circulated to your staff before any adverse weather arrives.

The policy can also set out what employees need to do by way of notifying you if they are struggling or unable to come into work and also can refer to the employees’ statutory rights and obligations with regard to having to take unpaid time
off work to deal with unexpected disruption to their childcare arrangements.     

It’s also a good idea to think of alternatives to employees having to take unpaid time off work. For some employees, working at home during the bad weather may be a viable alternative, but it should be made clear to staff that they are only
entitled to work at home if this has been agreed with their employer in advance. Again, this can be dealt with by means of an adverse weather policy.

Employers should also consider, before agreeing to employees working from home, whether there are any risks to the business in respect of things such as disclosure of confidential information or employee liability insurance or health and
safety obligations.
                 
It’s also worth considering, as an employer, whether it might be more in the interests of your business in the longer term to pay employees for absence caused by bad weather, even though they have no strict entitlement to be paid. A goodwill, discretionary
payment might lead to better staff morale and greater staff loyalty and so reap dividends for your business in future. However, if you are going to make such a payment, then you should make clear that it is a discretionary payment and is not being made out
of any contractual obligation.

Finally, it’s important to remember that different rules apply where the bad weather actually leads to the business itself shutting down for a period of time. Where employees do not have the option of working because the business itself is
shut, then in those circumstances any employee who could get to work will still be entitled to be paid – they are able and willing to work, but are prevented from doing so because the poor weather has meant that the business has no work to give them.

If you require further advice and guidance in respect of the steps you can take to reduce the impact of bad weather on your business and its employees, please contact a member of the Berg employment team.

To discuss how we can provide further advice in connection with these issues, please contact Nigel Crebbin, Partner in our Employment Team by email to
nigelc@berg.co.uk or alternatively you can call Nigel on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for this article’s accuracy or correctness is assumed by Berg or any of its partners or employees. Professional
legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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