Extreme weather - employment issues

Employers face difficult decisions when dealing with employees who get stranded at home or elsewhere due to an ‘act of God.’ We have seen chaos across the UK in the last year as a result of both volcanic ash and extreme weather conditions. Now employers are facing the same difficult issues as extreme cold weather and heavy snow hit the UK again. So what options do employers have in dealing with employees who are affected by an ‘act of God’?Very few employers will have a clause written into employees’ contracts stating that, if they cannot get in to work because of bad weather, they will have money deducted from their pay.  Employees have statutory protection against any unauthorised deduction being made from their wages, so if the employer has no contractual right to deduct pay, and if the employee does not consent, deducting pay where an employee is stranded due to bad weather would leave the employer open to claims for unlawful deduction of wages.

In any event, quite apart from the legal implications of docking pay, it would be unwise to cause unnecessary resentment among those who have been stranded through no fault of their own, or to make employees feel compelled to make hazardous journeys in treacherous conditions.

Now is the time for employers to implement  a ‘bad weather’ policy to cover extreme conditions such as heavy snow.  It is vital to tell all employees whom they should contact if they are unable to come in to work in such conditions, and what the policy is regarding pay. Employers must also be clear and consistent in dealing with staff who are stranded.

To ensure that employees are not taking advantage of poor weather conditions, employers could include a provision in their policy stating that a manager may judge that the weather and transport links have improved enough for employees to make it to work. Employers have the option of taking disciplinary action if they believe an employee could have made it into work but did not take all reasonable attempts to do so.

One option open to employers is to require employees to take a day’s leave as part of their holiday entitlement for each day they are required to stay at home.  We would recommend applying this policy with caution, however, as a prolonged period of adverse weather could result in some employees using up a large part of their holiday entitlement. 

Although this option (as opposed to requiring the employee to take a day’s unpaid leave) does not run the risk of claims for unlawful deduction of wages, it is not entirely risk free.  The employee may still argue that the purpose of holiday entitlement is to enable the employee to pursue the activities of his or her choosing and that the requirement to take holiday at short notice for other purposes could contravene the Working Time Regulations.   We would nevertheless recommend having the option of requiring the employee to use holiday within  the bad weather policy, and applying it judiciously and only after other options had been exhausted, such as having the employee make up time later or requiring the employee (if the nature of the job allows) to work from home. 

There is also nothing wrong with stating in the policy that agreement will be sought with the employee as to which option they would prefer, provided that the employer has the final say if agreement cannot be reached.  Whatever is decided, the policy needs to be clearly communicated to staff.

In summary, we would advise all employers to implement a bad weather policy where employees may be required to use part of their annual leave in certain circumstances and to require them to work from home if the job allows.  Ensure that this is communicated clearly to all staff whenever extreme conditions are likely to arise.

Piers Leigh-Pollitt, a Partner in our Reading office