The best business advice, opinion, news and expertise in Greater Manchester and further afield.

Friday, 15 January 2010

Friday Guest Blog: Snow chaos and employment law





Chris Hallam, Partner - Pinsent Masons LLP

"Everyone complains about the weather, but nobody ever does anything about it", so said Mark Twain about 100 years ago, and how true it remains to this day - at least in the UK where discussions about the weather are a national pastime. In a world where just a slight deviation from our ordinarily bland weather causes panic to set in, shops to run short of food and public transport to grind to a halt, at least the snow, ice and record low temperatures of the last couple of weeks means we actually had something worth moaning about.






Normally, a bit of snow is great fun. Who, hand on heart, can honestly say that their 'inner child' was not delighted by the sight of the six or seven inches of snow that fell last Tuesday morning. But bad weather is not so good for businesses and, according to Greater Manchester Chamber, it has probably cost local businesses in excess of £50 million.




Significant employee absence in the middle of our worst recession since, well, the last bad one is therefore pretty much the last thing that was called for.





In this blog, I look at what employers need to know about the impact of bad weather conditions on their employees. First of all, however, a slight confession. As a specialist in construction law, rather than employment, I cannot claim to know a great deal about the employment law issues around bad weather - so I am indebted to colleagues from our employment law group for their help in putting together (i.e. for writing) the following parts of this blog. For further information on this or any other employment related issue you are more than welcome to contact me, but better still, get in touch with my colleague Simon Horsfield (simon.horsfield@pinsentmasons.com), who is an employment law specialist. If you have queries as to the effects of bad weather on construction sites, however, then by all means contact me!





Minimum working temperature





As the winter weather bites, what protection do you have to provide for your employees from the chill?





For workers who work inside, certain regulations set out the rules on workplace temperatures. The general rule is that the temperature in workplaces should be at least 16 degrees Celsius.








However, there is no legal minimum outdoor working temperature so employers need to rely on thermal risk assessments.





In very cold weather, outdoor workers face two major health problems: hypothermia and frostbite. There is therefore extensive HSE Guidance (www.hse.gov.uk/temperature/index) about protective clothing for cold weather, health issues and management guidelines. (HSE suggests, for example, "allowing sufficient breaks to enable employees to get hot drinks or to warm up in heated areas").





Paying staff who can't get to work




Do you have to pay staff who are unable to get into work due to snow and difficult transport conditions?





Employees are obliged to attend the office unless they are sick, on holiday or on maternity leave etc. The onus is, therefore, on employees to come into work. Technically, this applies even in extreme weather conditions. Therefore, if the office is open and employees cannot make it into work because they are 'snowed in', one view is that you are entitled to treat their absence as unauthorised and are under no obligation to pay them.





However, if an employee's normal mode of transport is out of action due to severe weather disruption, you may need to revise this view. First, you should encourage employees to explore alternative means of transport. However, employees should not feel pressured to risk their safety to get into the office so it may be sensible to consider whether or not employees could usefully work from home until the weather situation has improved.




If this is not a viable option, then the alternatives available are for you to advise employees that:








  • any time off work in these circumstances will be unpaid (ideally, you will have a contractual provision to support this); or




  • they will be paid but will be expected to make up the time at a later date; or












  • they can request to take the time off as paid annual leave or as unpaid time off for dependant's leave (e.g. if schools close – see more about this below).





In practice, few contracts will state that employees who cannot get into work because of the weather will lose a day's pay. Employees have statutory protection against an unauthorised deduction being made from their wages without their consent and deducting pay could potentially be challenged as unlawful under these provisions (although the employer could argue that there was no entitlement to pay as no work was done.)






You should therefore assess whether not paying employees would be in the best interests of your business. It may be that the financial burden to the business of paying staff in these circumstances is outweighed by the benefits that such a gesture would have on staff morale and productivity in the long run – especially if the snowfall is particularly heavy and it is impossible to get into the office.






Enforced holidays






Can you require an employee who cannot get into the office to take a day's holiday?
This is not likely to be an option for employers. Unless the employee's employment contract contains an express right for the employer to direct when their holiday is taken, employers cannot force employees to take a day's holiday without their consent.






School closures





If schools are closed or an employee's nanny is unable to make it to work because of the severe weather and there is no one else available to look after the children at such short notice, what are the implications for employers?






To avoid the office becoming a temporary crèche, there are statutory rules which allow parents to take time off when there is an 'unexpected disruption to childcare' and parents are protected from suffering a detriment for doing so.






Arguably, a school closure is not the same as a disruption to 'childcare', however, if the school closure was announced first thing in the morning and alternative childcare arrangements cannot be made, this could be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off. Strictly, the day would be unpaid but not all employers will take this approach. It is also important for employers to adopt a consistent approach to the policy adopted for employees without children.






Working from home






If it is safe to travel, employees should come into work as usual. If employees are concerned that the conditions are not safe or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees have Blackberrys or similar mobile devices and, if not, then they can access their work email and office applications remotely via a laptop, home PC or mobile phone.






However, even though they are at home, employees need to be clear that they must still work as far as possible (and not just watch TV). A home working policy could be helpful here making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output.






Falsely blaming the snow






What if an employee could have made it into work but chooses not to?
If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally, this could be a disciplinary matter.
However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a 'snowball' day.






In a blatant or persistent case you may, of course, choose to investigate the matter in the usual way and take any necessary action in line with the company's disciplinary policy. Alternatively, when the initial conditions that made travel to work impossible have subsided, you could let employees know by phone, email or text that any further time off will need to be taken as holiday. You may find that once this has been communicated, employees suddenly start finding ways to get in.






Closing the office






What if you are forced to close the office due to the severe weather conditions?
If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay.






If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an 'unpaid lay-off' clause in your contracts of employment, or the employees expressly consent to being laid off without pay.





There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments, and you should take legal advice before proceeding.






Should employees who actually make it into work be rewarded?






Employees who have battled into work, often against the odds, may resent the fact that others made less effort, especially if, once they are in the office, they have to work extra hard to cover those who are absent. Ideally, the employees' efforts should not go unnoticed – though days off in lieu or other financial rewards are unlikely.






However, employers should carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home. Never ask staff to disregard official weather and travel advice.






Minimise the chaos






It may seem that the UK is beset by 'unexpected' snowy weather every year. It is therefore worth thinking about alternative ways to manage the situation. Employers should consider introducing an 'adverse weather policy' so employees know what you expect of them when severe weather strikes. This will also help avoid confusion and conflict when the snowfall arrives.
Alternatively, you could amend your normal absence policy to cover such instances. The policy should contain guidance about workplace closures, disruptions to public transport, working from home and remote IT access, whether employees will be paid if they fail to attend work, disciplinary sanctions for 'snowball' days and whom employees should contact once they know they will be unable to make it in.






With occurrences of severe weather on the rise, putting in place a clear adverse weather policy could be a worthwhile investment.

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