Cold Snap – Casting a Cloud Over UK Businesses
Cold Snap - Casting a Cloud over UK
Businesses
Alison Love
12 I 10 I 09
It is predicted that this
winter’s cold snap is likely to cost UK businesses some £0.5
billion every day* as they attempt to cope with wide-spread
absenteeism. Indeed, absence rates among the UK workforce during
January 2010 are thought to be as high as 14 per cent*.
This article seeks to
offer useful guidance to employers during the current cold snap and
also offers pragmatic advice on how best employers can protect
themselves in the future.
Useful Guidance for Employers
Is an Employer Obliged to Pay Staff
Who Are Absent Due to the Bad Weather?
UK Employment law
dictates that the onus is on the employee to get to work,
regardless of the weather. If an employee fails to turn up owing to
bad weather, the employer is therefore under no obligation to pay
them (unless there is a company policy to the contrary).
TUC General Secretary, Mr Brendan
Barber, warns however that ‘scrooge bosses who dock pay and take
away holiday are needlessly adding to their business woes by
creating resentment amongst staff. Workers who have been prevented
from getting to work despite their best efforts should not have to
foot the bill for the bad weather conditions’*.
What Else can Employers do?
The Chartered Institute of
Personnel and Development (CIPD) recommend that employers take a
common sense approach during any period of bad weather. Therefore
the following solutions could be considered by an employer instead
of docking their employees’ wages:
1. Allowing
Employees to Work from Home
Rebecca Clake, CIPD Organisation and Resourcing Adviser, has
said that “employers need to carefully consider opportunities and
options available if the weather conditions do stop employees
making it in. Many companies that have put in place the technology
and management practices that allow homeworking reap the benefits
at a time like this”*.
Therefore, a combination of
technology and common sense on the part of employers and employees
can minimise the impact on
businesses.
The CIPD recognise however that many employers will still be
affected, with many job roles not able to be fulfilled through home
working. In these cases difficult decisions on how to manage
employees who have not been able to make it into work will have to
be made.
2. Overlooking Employees
Absences in the Circumstances
Where staff genuinely cannot make
it into work and who have jobs that cannot be done remotely the
employer could choose to overlook their absence in the
circumstances. This however can be a costly option for employers
but should ensure that morale is kept high amongst the workforce.
Nevertheless, with the current state of the economic climate this
may be an impossible option for businesses that are already
struggling.
3. Allowing
Employees to Take Leave as Annual Leave and Treating the Absence as
Unpaid Leave
Employers can give
employees the choice to take time off as paid annual leave rather
than unpaid leave. However, if the current conditions persist for
some time this may become impracticable as employees will use up
the majority, if not all, of their annual holiday entitlement which
may cause problems in the future.
4. Allowing
Earlier Finish Times
This is a sensible and pragmatic
solution to ensuring that employees are commuting safely home from
work. The TUC have said that employers should ensure that any
workers who were at work when it started to snow would be able to
get home safely, and were not put at risk if the weather
worsened.
5. Allow Employees to Work Back
the Time
A further option is to allow employees to work back any time
they have missed. If an employer decides to implement this
approach, consideration will need to be given as to how this would
be regulated, for example, requiring an employee to work back any
time within a certain given time period.
What Are Employers Doing?
A recent poll on the HR Review website* showed
that:
- 50% of employers are asking their employees
to work flexibly from home;
- 25% of employers encouraged employees to
count their absence as annual leave;
- 13% of employers agreed to overlook the
employees absence in the circumstances; and
- 12% of employers treated the absence as
unpaid leave.
What Happens if there is a
Temporary Shutdown of the Business?
If an employer temporarily has
to close its business premises at short notice because of
unforeseen circumstances, such as bad weather, and there is no work
available for its employees as a result, employers may have to pay
its staff in these circumstances as 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.
What is the Position Where
Employers Cannot Work because of Child Care
Issues?
During this period of bad weather
there have been widespread school closures. Parents who have to
stay at home to look after children who would normally be at school
are entitled to take dependent leave. However employers are not
obliged to pay for this time off. It is important to note that
dependent leave is designed to deal with immediate emergencies and
should not be considered as a long term solution to problems with
child care arrangements, so again if conditions persist for some
time this may cause problems.
Who Pays for Extra Travel?
Where public transport has been delayed or cancelled, many
employees are choosing to pay for a taxi into or home from work.
Other employees with long commutes have found themselves stranded
and have been forced to stay in a hotel instead of going home. The
question therefore arises as to whether an employee can claim these
expenses back from their employer. The general rule is that an
employee would not ordinarily be entitled to claim these costs back
unless the employee’s contract of employment makes provision for
this.
What Duty of Care do Employers have for Employees
Travelling into Work?
Employers have a duty of care to
their workers, but this does not necessarily include journeys to
and from work. Whether travelling into work is counted as working
time is questionable. However, if a disabled person had particular
issues getting to work and that person faced disciplinary action as
a result, the employer could face a potential discrimination
claim.
Employers should therefore exercise
discretion when dealing with snowbound workers. There are many
considerations including how far someone lives from work and their
type of employment.
What about Employees who have Driving
Duties?
Where employees have to
drive as part of their job, for example delivery drivers, employers
will have a health and safety duty to ensure that they are allowed
extra time to complete journeys and factor in alternative
routes.
Employees should not be
pressurised to complete any dangerous journeys. Where conditions
are dangerous, employers may be in breach of their health and
safety duties if they require their employees to drive.
How Employers Can Protect
Themselves for the Future?
Many employers will
already have ‘bad weather’ policies in place so staff are clear as
to what is expected of them. If not, employers should
consider implementing such policies for future incidents of bad
weather. In recent years the UK has experienced extreme weather
conditions, from this years snow to last years floods, and it seems
that this trend is set to continue so employers should take steps
to protect themselves now.
Although employers are well within their rights to cut
employees' pay for unauthorised absence, they should be
communicating this to their workforce in advance.
Having a well-communicated adverse weather policy in place could
help in certain situations to avoid conflict or confusion should an
employee be late or fail to attend work altogether as a result of
bad weather. Best practice therefore is to have appropriate polices
and procedures in place to prevent problems, and Tribunal claims,
from arising.
Our Employment and HR Services Team can provide legal and
practical guidance in a range of options including:
- Drafting adverse weather polices;
- Advising employers on an ad-hoc basis;
- Advising as part of our retainer scheme which
provides organisations with access to a telephone helpline and
precedent correspondence;
- Providing the services of our HR Consultants
to provide “hands-on” guidance.
- Providing bespoke, tailor-made training
sessions.
Find out more about our employment services