flurry of options available when snow affects workforce

7th December 2010

As the big freeze continues, with the worst winter in almost 50 years continuing to grip the country, the sub-zero temperatures are taking their toll on schools, roads, rail and workplaces.

It has been estimated that this has already cost the Scottish economy more than £100 million, with reduced takings at shops and snowbound employees not making it into work.

For those employees, however, who believe that their absence from work is an early Christmas holiday, bringing with it some festive cheer, they should note that employers are usually under no obligation to pay them for not making it to work, even though this is due to no fault of their own.

The onus is on the employee to come to work. Thus, in the absence of any contractual provision or an adverse weather policy which entitles them to payment, the fact that they are not legally entitled to be paid if they are unable to get to work due to bad weather may be something of a rude awakening for many.

This deduction in salary will not amount to an unlawful deduction from wages under the Employment Rights Act 1996, because there is no contractual right to any such payment. However, in the interests of maintaining staff morale and external PR, it is advisable for employers to consider suitable alternatives before deciding to withhold pay. Employers who are supportive of employees who are genuinely not able to make it into work are likely to benefit from more highly motivated staff in future.

The employer should first encourage the employees to explore alternative means of transport. Or if an employer has offices in several locations, it may be more practical for staff to work temporarily in an office that is easier for them to reach. Alternatively, it may be possible for staff to work from home if there are sufficient resources to enable them to do so. Technology makes this possible for many employees.

If these are not viable options, the alternatives available for the employer are to agree to vary the employee's working hours by allowing them to start later or leave early to make allowance for travel delays/restrictions or childcare arrangements. And it may be possible for employers to agree with an employee that they will take time off as paid holiday. Alternatively, employees may be asked to make the time back at a time agreed with the employer.

The weather has also resulted in the closure of many schools across the country and this may present many workers with childcare problems. Employees have the right to reasonable unpaid time off to deal with emergency situations regarding their children. However, it should be noted that the time off is intended to allow alternative arrangements to be made, not to look after their children themselves.

A degree of flexibility must be exercised by employers to ensure the right balance is struck between the need to get work done and recognising the childcare difficulties which arise in these circumstances.

Circumstances may also arise where a business is closed due to the fact that a significant number of employees are not able to make it in. Some employees, given the nature of their work, may be able to work from home, but for those unable to do so the employer will still be required to pay normal wages, unless there is a contractual provision relating to this. Should a deduction be made in wages this amounts to a breach of contract by the employer. Under some circumstances, even where there is contractual provision for non-payment, employees may be entitled to a statutory guarantee payment for any day when work is not available.

If an employer has reason to believe an employee is abusing their flexible approach to timekeeping and absences, they should investigate this in the same way they would any other unauthorised absence.

Ultimately, however, it is at the discretion of the employer how they decide to deal with bad weather issues, but they should take a common sense approach and be flexible in terms of looking at other possible arrangements if employers are not able to get to the workplace. Ultimately, whatever decisions are taken must be consistent and fair to minimise the risk of discrimination claims, while also taking into account the circumstances of individual staff members.

Jacqueline McCluskey is the head of employment law in Scotland at national law firm HBJ Gateley Wareing.