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reducing snow days - an employers 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 employees 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 days 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 days 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 employees 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.

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