Mentor Adverse weather Q&A

Employment Law & HR update 10/01/2012

We are only in the early part of 2012, and the UK has already been hit by two episodes of extreme bad weather. We are coming to that time of year where the weather can have quite an effect on you and your staff. Be it snow stopping them getting out of their drive, or adverse weather affecting public transport, there are many questions you may have about what you need to do.

To help, we have taken some of the most popular questions from our Advice Service during this type of situation and answered them below.

Q. What happens if staff are unable to get themselves into work - do I have to pay them?

A. No. If your employees are unable to get themselves into work (for whatever reason) then you are not legally obliged to pay them. However, you could consider alternatives, such as temporary home working or asking staff to take part of their paid holiday entitlement.

Q. Is this sort of absence a disciplinary matter?

A. A reasonable employer would normally count such absence as "authorised absence", if the employee has phoned in to inform the employer that he/she is unable to attend work, and so it is not a disciplinary matter. Employers should also bear in mind that different employees may have different circumstances - perhaps a long commute or living in a particularly snowbound area. For this reason it is impossible to make a general rule about taking disciplinary action against those who do not get into work just because some employees do make it into work. Disciplinary action would only be appropriate if you have good reason to believe the employee is being untruthful about the snow being the reason for not attending work, or to reinforce the message that employees must notify you of their absence if they have not done so.

Q. What if schools are closed and staff have to stay at home with their children even if they could get to work?

A. There is no obligation to pay staff who are absent on this basis. It is also a tricky area as the basis for taking any sort of disciplinary action. Under the law, all employees do have the right to unpaid "time off for dependants", and this would also include a situation where a member of staff has to take time off to assist an elderly relative, for example. However, such time off should be no longer than what is required to deal with the immediate emergency - normally one or two days would be appropriate. Where the weather causes extended school closures, there is no definite rule that says parents have the "right" to time off work to look after children. Some will find it easier than others to make other arrangements - perhaps by using relatives to look after their children. In dealing with such situations, employers must act reasonably, and it is not advisable to pursue disciplinary action in cases where an employee's absence is cased by a school closure.

Q. Do I have to pay my staff if I cannot provide them with any work?

A. In general - yes you do, and at their normal rate of pay. In some cases, employees can be "laid off" without normal pay if there is a specific term in their contract allowing the employer to do this. When employees are laid off in this way, they are entitled to a statutory payment from the employer called a "Guarantee Payment". The current rate is a maximum of £22.20 per day. Payment is limited to a maximum of five days in any period of three months. An employee must have completed one month's continuous employment in order to qualify for a Guarantee Payment. On days on which a Guarantee Payment is not payable, employees may be able to claim Jobseekers' Allowance and employees should contact their local Jobcentre to see if they qualify.

Q. Can I make staff take holidays from their annual holiday entitlement if they don't turn up for work?

A. You could only insist on this if you have a condition in employees' contracts of employment allowing you to do so. In any case, it might not be a good idea for employees to use much of their annual holiday entitlement so early in the year, if your holiday year starts in January.

Q. I've heard some employers ask their staff to work from home in bad weather - can I do this?

A. Working from home is much more common than it was even five or six years ago, thanks to new technology. Some employers have staff who are permanently home-based. However, the issues are more complex with staff who normally work at the employer's premises - and, of course, not all work is suitable for home-working. In the very short term, it is likely to be reasonable to ask staff who can do some work from home to do so - for example if they have a laptop computer or telephone and are able to get some work done away from the office. Equally, if it is the employee who asks to work from home for a few days, this might be a reasonable request. In this way, employees would avoid losing pay for days they cannot get in to work. However, non home-workers are unlikely to have the infrastructure available to allow them to work efficiently or safely - such things as internet connections, desk space, and material to work on. Employers also need to consider the health, safety and security implications of having staff working at home, as well as supervision arrangements. Again, what is reasonable in the short term might not be appropriate for a longer-term arrangement. In the long term, where the nature of the work allows it, employers and staff might consider reviewing working arrangements to allow for permanent or occasional home working - this might benefit both the employee (greater flexibility and less time and expense commuting) and the employer (saving office costs and allowing for business to continue in severe weather conditions).

Q. Due to the weather, my business is unlikely to be busy and I don't need my staff working full time, is there anything I can do?

A. For most employers, if the employees report for work, there is little you can do. It might be possible to agree that the employees take some holiday, but employers cannot insist on this unless the employee's contract provides for this to happen. In some cases, an employer might be able to impose "short-time working" (a temporary reduction of working hours) but only provided there is a specific contractual right to do this. This might be contained in an agreement with a trade union representing the workers, or in their contracts of employment.

Q. As a result of the weather, my business has been so badly affected that I will have no option but to close the business permanently. What are the implications of this for my employees?

A. This will be a redundancy situation, and you will have to make redundancy payments to all staff with more than two years' service. In addition, staff will be entitled to receive pay for their notice period. Although closure of a business is a genuine redundancy situation, the law about the procedure to follow, and the amount of payments due is complex and can lead to claims for Unfair Dismissal and compensation if you get it wrong. Mentor can provide your clients with advice relating to potential redundancy situations via our 24 hour Advice Service.

If you would like further information, and already subscribe RBS/NatWestMentor, please call the Advice Service. If you would like more information on how Mentor could help your business in situations like this and many others, contact us today for information.

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