bulletin
Reducing 'snow days' - an employer's perspective
27 January 2010
The recent adverse weather conditions have prevented many
employees from getting to work. Many absences may be genuine but
others may not. This bulletin looks at some queries that have
arisen and what can be done to ensure greater clarity next time we
have a big freeze.
Can I state that unauthorised absences due to adverse
weather will result in disciplinary action?
In most cases, the answer is ‘no’. Employers have a duty to deal
with employees consistently and fairly. It would be unfair to
discipline an employee for failure to attend work through no fault
of their own. The reasons for non-attendance should be investigated
before any disciplinary action is taken, to ensure fairness and
consistency.
Setting rigid rules about who is expected to attend may not be
fair either, as this would not take account of personal
circumstances. As an example, stating that employees living within
three miles of their place of work are expected to attend by, if
necessary, walking to work could be unfair. It would not take into
account those with reduced mobility, the health and safety risks of
requiring employees to walk in icy conditions or, indeed, someone
living five miles away but next to a train line known to be
running, and so could fall foul of the requirement to treat
employees fairly.
Due to the difficulty in fairly investigating whether an
employee could have made it to work, the threat of disciplinary
action, whilst motivational, may not be appropriate for many
employers.
However, employees are still likely to be subject to
notification requirements in relation to their absence. Many
employers stipulate that contact must be made before 9.30am,
explaining any reason for non-attendance at work. Employees who do
not do so could be subjected to disciplinary action. Furthermore,
if an employee is spotted out and about on a ‘day off’ instead of
attending work, then this would need investigating as the employee
may not have a genuine reason for not attending work and might be
using the weather as an excuse.
Can I state that employees will not be paid for days
they do not attend work?
This will depend on the employees’ contracts. 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, without the right to recoup it in any other
way; no matter how justified the employer might feel in docking
pay. Employers who wish to amend the contract to allow them to make
deductions will need the employee’s consent.
Can I state that any absences will be treated as annual
leave?
Using holiday may be a good way to deal with people who decide
to take a ‘snow day’. Unless the employment contract states
otherwise, employers are entitled to dictate when employees take
their annual leave if they give at least two days’ notice for each
day of leave - so four days’ notice for two days’ leave etc. The
drawback is the unpredictability of our weather, and should notice
be given that a specific day will be treated as holiday, an
employer may find themselves without employees on a day where there
is no disruption to travel.
Another option is to give employees the choice between treating
absence due to weather as holiday or providing a satisfactory
explanation of why they were unable to attend work, failing which
the disciplinary procedure might be invoked. This option may
encourage the more reluctant employees to attend work, whilst not
penalising those who are genuinely unable to attend. Losing a day’s
holiday allowance may be seen as detrimental, but many would prefer
this option to disciplinary action or a reduction in pay.
The most effective way to encourage employees to either attend
work or use a day’s holiday in adverse weather is to make provision
for it in the employment contract or policy documents. Existing
contracts could be amended (although employees’ consent, or the
consent of a union with a suitable collective agreement would be
required) to disapply the requirement in the Working Time
Regulations for notice so that short notice can be given.
If employees’ agreement cannot be sought, the terms could be
incorporated in contracts for future employees. Although the
benefits of this may be more limited, every little helps!
Can employees take time off to care for their children
due to school closures?
There is a statutory right for an employee to take reasonable
time off where it is necessary to ‘deal with the unexpected
disruption, termination or breakdown of arrangements for the care
of a dependant’. What is ‘reasonable time off’ and what is
‘necessary’ has been the subject of some discussion in the
employment tribunals, so each case tends to be decided on its own
facts.
This could cover an unexpected school closure; it is certainly
arguable that a school cares for the child throughout the day and
if the school is closed, another form of care would have to be
arranged. However, there is no obligation to pay an employee for
days taken off in this way (subject to the employment
contract).
Another option for employees is to take ‘parental leave’. Again
this is unpaid and, must be taken in one week blocks unless the
employee’s contract says otherwise. An employee must give
reasonable notice of their intention to take such leave but this
may not be possible for emergency school closures. There is no
requirement for it to be necessary to take time off, as long as
leave is taken to care for a child.
What other issues could arise?
There is the potential to fall foul of disability discrimination
laws if the weather conditions pose an increased risk to certain
employees due to disabilities. It is certainly arguable in some
instances that an employer is failing to make reasonable
adjustments if they state that a disabled employee is also expected
to attend without considering whether this is feasible.
What about pregnant employees? Would requiring a pregnant
employee to attend work in icy conditions put her at risk? What if
she refuses to attend during times of adverse weather conditions?
Looking at each individual case is important – imposing blanket
rules across the board is likely to be dangerous.
Whatever course of action is decided upon it is important to
treat employees consistently and fairly, but to remain flexible in
special cases. It is crucial that employees are warned well in
advance of the rules that will apply should anyone be unable to
attend work due to weather. The employment contract is the best
place to do this as no-one can argue that they were not informed.
As mentioned above, amending existing employees’ contracts can be
tricky but there are ways to get around the problem if an employer
makes use of policies. The issues above could all be dealt with
using a sickness and absence policy or a disciplinary policy which
would be referred to in the employment contract.
The key is to minimise the allure of staying at home whilst
treating genuine cases fairly so employers have a number of things
to think about when arriving at their decision.
talk to us
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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.