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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 employees job.

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The content on this page 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.

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