Winter is coming; and with it the disruption caused by employees unable to attend work due to bad weather. But what is the legal position when this happens and what practical steps can you take?
The position is not always clear whether an employee should be paid if they cannot attend work due to circumstances outside their control.
If there is an express term in the contract or handbook dealing with this then the matter should be straightforward. Alternatively, it might be possible to imply a term into their contract based on past conduct.
Otherwise, the general principle is that wages are not payable unless the employee has provided “consideration” – such as performing their actual duties (which is likely to be the case for hourly-paid employees) or by being ready and willing to work (for salaried employees).
The general view (which is supported by ACAS) is that an employee who cannot get to work is not “ready” to work. As such, they should not be paid. However, there is case law that actually supports payment where non-performance is involuntary and unavoidable.
Rather than having to decide whether to pay an employee other options are:
- allowing the employee to work from home;
- requiring the employee to make up the lost time on another occasion(s);
- requiring the employee to work from an alternative site;
- treating the time off as flexi-time; and
- with the employee’s consent, treating the time off as annual leave.
- Plan ahead to ensure any business disruption is kept to a minimum by having contingency plans in place.
- Ensure contracts and/or handbooks reflect the position you want to adopt regarding pay for non-attendance.
- Have a policy specifically dealing with bad weather and ensure that employees are aware of it.
- Ensure employees know who to contact and how to stay in touch.
- If in doubt, seek advice.