What happens when employees can’t get to work

When Scotland and other parts of the UK are affected by severe weather, people often ask where employers and employees stand if people can’t get to work or the workplace is closed.

So, just where do employers and employees stand?

If you are unable to get to work does it affect pay?

Generally speaking, employees are obliged to attend work and employers are obliged to provide work and pay the employee for the work they do. So, if employees fail to turn up for work, unless their contract indicates otherwise, the obligation to pay them generally falls away. But it’s not always that simple.

Employers should bear in mind that employees have a statutory right not to suffer unlawful deductions from wages. A deduction from wages will be unauthorised if there is no contractual basis for the deduction and could lead to an Employment Tribunal. Much depends on the circumstances.

There is case law to the effect that if an employee’s failure to return to work is unavoidable then they may still be entitled to be paid. Further, if the employee is ready and willing to perform work, but is stopped by the employer through the closure of the premises, then the matter becomes more complex. On the other hand, if there is no guarantee of work (say, where there’s a zero hours contract), an employer will be in a stronger position.

Consideration has to be given to what is in the contract, the handbook (including any adverse weather policies), and custom and practice of the organisation, so some cases will be more straightforward than others.

Is the law always the answer?

No. Employers might get better results by taking a flexible approach regardless of what they can do in terms of the law. ACAS suggests:

The handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled.

Other ways to calm the storm

As ever, employers should bear in mind their obligation of ‘trust and confidence’ to employees. That means, in short, not being wholly unreasonable. Bearing in mind the ‘do not travel’ advice, employers should take care to ensure that they are not putting excess pressure on employees. Flexibility is the key. While employers cannot necessarily afford to pay employees when they are unable to work, employees will always be in difficult circumstances through no fault of their own. There are alternatives which employers may consider, such as:

• paying employees in return for their agreement that they will make up the time on their return
• agreeing with the employee that they will take the time off as paid holiday
• splitting the employee’s time spent off as 50% (un)paid leave and 50% holiday
• where facilities exist, allowing the employee to work from home.

Can employees be obligated to take a holiday?

Unless the individual’s employment contract contains an express right for the employer to direct when their holiday is taken, it is doubtful that employers can force employees to take a day’s holiday without their consent, particularly after the event.

Employers are required to give notice of at least twice the length of the period of holiday, which often renders it impractical. If an employer intends to deduct days from an employee’s holiday entitlement, they must make this clear to staff at the earliest opportunity.

What if the schools are closed?

Employees are entitled to take reasonable time off for unplanned circumstances which require them to look after dependents. This would almost certainly apply in circumstances where schools are closed and alternative childcare, particularly at such short notice, would be very difficult to find. While, again, there is no obligation to pay the employees for that time off, a discussion with the employee would still be appropriate in these circumstances; those who have to take the time off to look after dependents must be given the same flexibility as those who are unable to travel to work.

What about workplace closures due to disease?

Many people have been unable to attend their workplace due to the COVID-19 pandemic. We have issued specific guidance on the rules surrounding this – see our insight here.

Employees who try to make ‘heavy weather’ of it

But there may be a few employees who take advantage of the situation.

An employer may have a concern that an employee is using the weather to avoid returning to work. An employer may choose to investigate the matter further and consider disciplinary action. For example, it should be fairly straightforward to establish if an employee’s train was cancelled when they claim that it was.

Time to blow the problem away

Travel disruption is increasingly more common. It would be worthwhile taking this opportunity to consider amending policies and contracts to ensure clarity for both the employer and employees.

Policies could be changed to provide flexibility for both employers and employees on things like payment of wages, flexible and home working and holidays, where adverse weather (or unplanned circumstances) prevent them attending work or cause the employer to take a reasonable decision to close the workplace.

A discussion with employees or trade unions at this stage could prevent damaging confusion if and when adverse weather returns.

Legal disclaimer