employment considerations in riot hit retail districts
11 August 2011
Following the unprecedented rioting this week, retailers
will need to consider how to deal with employees who cannot work
because the store is damaged, or who cannot get to work because of
transport difficulties.
General rules
The general rule is that employees who are ready and willing to
work should be paid even if the employer is unable to provide work.
The contract of employment, however, may provide otherwise, either
expressly or by implication.
Redeployment
The contract may allow you to redeploy an employee to another
store or to perform alternative duties. You should ensure they have
had appropriate health and safety training if you intend to ask
employees to assist with cleaning etc.
Deducting pay
Whether you can deduct pay from employees who are unable to work
will depend on their contract of employment. Where an employee is
only paid for the shifts they work each week it may be reasonable
not to pay for a shift they were unable to work. If an employee is
salaried, it may be more difficult to justify a deduction from
their wages. Deductions from pay should only be made if permitted
by a written contractual term or a term notified in writing. So the
employment contract should be looked at. Deducting from wages
without a contractual right to do so can give rise to a claim for
the money to be repaid.
Downtime and annual leave
It may be possible to treat some of the "downtime" as annual
leave. Unless the employment contract states otherwise, employers
are entitled to dictate when employees take their annual leave if
they give notice equal to double the length of the leave - so four
days’ notice for two days’ leave etc. You could also invite
employees to take the time as annual leave rather than have a
deduction from wages.
Disciplinary
If you suspect an employee has been involved in rioting or
criminality, this could be dealt with in accordance with your
disciplinary policy. What level of disciplinary action is
appropriate will depend on the severity of the offence and the
nature of the employee's job.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.