As the UK braces itself for a blast of wintry weather, employees and employers may be wondering what their rights are in the event that staff are prevented from working due to snow or other bad weather. While the law may provide an answer, employers should consider if being more pragmatic is ultimately the best way forward.

Can my employer stop paying me if I can’t get to work?

In principle, yes. If you have not done any work  then you will not be fulfilling your employment contract and your employer will be released from its obligation pay you.

However, an employer will only have the right to withhold pay if an employee’s absence is unauthorised. It therefore needs to consider carefully whether the terms of the employment contract make it clear that absence due to bad weather is not an authorised absence or, whether it has been authorised in some other way (either expressly or impliedly) for example by a manager saying something like ” don’t worry about coming in tomorrow if it snows”?

Is the situation covered by a workplace policy?

It is becoming more common for employers to put bad weather policies in place so, check your intranet or staff handbook to see if your employer has one and what it says (preferably before you are unable to get to work!). While the policy probably won’t be legally binding, it will give you some idea of how your employer will handle absence related to bad weather.

It is also worth checking your employment contract to see if it covers the situation, although this is unlikely.

What rights do I have if my employer refuses to pay me?

Employees have statutory protection against any unauthorised deductions being made from their wages. Claims for unpaid wages can be brought in the employment tribunal and there is no need to resign before bringing such a claim.

However, the crucial question will be whether the deduction is “unauthorised”, i.e. was the employee actually entitled to be paid because their absence was not unauthorised?

Why should employers pay their employees for a snow day?

Notwithstanding the strict legal position, an employer can decide to pay employees for some or all of the days they cannot make it into work because of adverse weather conditions. The benefit in terms of staff morale and goodwill will undoubtedly outweigh the financial burden. However, is it very important that all employees are treated consistently in order to avoid discrimination claims i.e. that the employer doesn’t exercise its discretion to pay some employees but not others, in the same position.

What about employees with childcare commitments?

If schools and nurseries are shut and employees cannot make alternative childcare arrangements at short notice they may be able to rely on the statutory right to take unpaid time off for family emergencies to do with their dependants. However, this is intended to allow alternative arrangements to be made and is not a right to allow employees to stay away to care for their dependants indefinitely themselves.

Employers also need to be aware that there could be potential sex discrimination issues if employees are treated less favourably than those who are absent for other reasons. For example, if an employer disciplined employees who were absent to look after their children, but not others.

Using holidays

A more practical way around the issue of absence due to bad weather may be for an employer to consider alternatives, such as:

  • agreeing with the employee that they will take the time off as paid holiday
  • allowing the employee to make up time within a specified time scale
  • requiring the employee to work from home

While employees may prefer to take a day’s leave rather than lose a day’s pay, an employer cannot force them to do so after the event. Employers have to give staff a minimum amount of notice in advance if they want them to take leave on a particular day.

Any employee who work from home must be paid their normal wages.

Health and safety

Employers have a duty of care concerning the health and safety of their employees, so they should avoid putting undue pressure on employees to attend work if this could result in them taking unnecessary risks.

If the official advice is to stay at home unless the journey is essential, employers should not be asking individuals to get in regardless. There could be a potential liability for the employer if an employee suffered an injury after being pressurised into travelling by car or foot in dangerous conditions.

Forcing employees into a situation where they feel they have no alternative but to travel to work or risk facing a deduction from pay and/or possible disciplinary action should be avoided.

Comment

As our weather seems to be getting more extreme, more employers are likely to look at amending their standard employment contracts to make it clear what circumstances will amount to unauthorised absence and giving them the power to deduct salary in such situations. In the meantime, this issue remains  a slightly grey area.

If you have questions about your employment contract, speak to one of our employment law specialists today.

 

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Updates: For employers: Holiday and working time |

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