Member Article

In an increasingly unpredictable climate, adverse weather can prevent employees from attending the workplace on time, or at all. Here, we discuss what employers can do to mitigate the effect of adverse weather on their business.

As the nights grow darker and the weather turns colder, we are reminded that the winter months often bring with them severe bad weather, road closures and delaying or cancelling public transport, causing disruption to commuters’ journeys and resulting in employees turning up to work late or not at all. 

Such delays or absence can cause considerable issues for employers, for example when shifts are not fully staffed, vital customer meetings are missed, services aren’t provided, or goods aren’t produced. However, in such situations, employers must balance the needs of the business with their duties towards employees. 

Employers have a common law duty to take reasonable care for the health and safety of their employees, as well as a statutory responsibility for their employees’ welfare, health and safety so far as is reasonably practicable. As a result, if adverse weather conditions arise, employers should consider the health and safety concerns of employees. This might include not encouraging staff to travel if it is not safe to do so. 

Adverse weather does not just impact employees who commute but can also affect employees because childcare or other caring arrangements are cancelled. Closures or limited access to schools and nurseries can mean that employees need to take time off for dependants, in which a reasonable period of unpaid time should be permitted to cover unexpected disruption to care arrangements. 

While many employers will find disruption to travel or schools less of a challenge in a post-pandemic world, given the increased use of technology and hybrid working models, this will not be the case for everyone and being responsive to unexpected events and preparing for such occasions will put employers in a better position to maintain business continuity when the worst happens.

Options for employers

Employers need to consider their options when adverse weather causes disruption to their operations and decide on what approach is most appropriate for their particular organisation. While such options differ in the flexibility they afford to employees, it will be up to employers as to their approach, and invariably will be both industry and sector-specific. 

Non-payment of employees

A common question that arises is whether employees who cannot get to work need to be paid. This will largely depend on the employment contract, the nature of the employment relationship as well as how the parties have behaved both at the time and previously during the employment relationship. Unless the employee has given their prior written consent, a deduction from wages is usually unlawful. However, for there to be a deduction, there needs to be a right to be paid. For some roles, such as piece-workers, the right to pay will be based on actual performance of the work, so unless the employee actually does the work there is no contractual right to pay and therefore no unlawful deduction if pay is withheld. For other roles, it is open to employers to include a clause in the employment contract that a deduction of wages will occur if the employee is late or doesn’t attend for work at all as a result of adverse weather conditions. Provided the employee agrees to this by signing the contract before any deduction is made, it will not be unlawful. That said, such a provision may impact employee relations and could be reputationally damaging, so some employers choose an alternative approach. 

Allow employees greater flexibility

Employers could take an alternative approach and offer more flexible working arrangements if it suits their business needs. Employees who can work from home have the option not to travel if the weather conditions prevent it, and as such businesses can be more agile in responding to unexpected disruption. 

For employers where on-site working is a necessity, they could allow employees to work at the site closest to their home or swap shifts with those who can travel in more easily. Alternatively, employers could introduce flexibility of working hours and allow employees to start work later, to minimise the effect of snow and ice on commuters. Employees could also have the option to make up the time later which could be agreed via a flexi-time scheme, or via an informal arrangement between the employer and employee.

Close the site temporarily

Adverse weather conditions can create unexpected problems for employers who require employees to be physically present during their day-to-day operations. Even if employees make it into work the employer themselves may decide to close the premises for a short period of time, for example if freezing conditions render the site inaccessible or undermine the safety of the staff working there. This then becomes a layoff scenario in which the employer should pay normal remuneration to affected employees, unless contractual provisions specifically relating to this scenario say otherwise.

Offer additional leave entitlement 

If adverse weather means employees cannot get into work and are unable to work from home, businesses could provide for the time to be taken as either paid or unpaid annual leave. However, this must be caveated as it can cause additional issues regarding holiday entitlement and notice. Mandating paid annual leave could incur problems if employees do not have the holiday entitlement available. Further, the Working Time Regulations require notice to be given in advance to employees if the employer wishes to mandate days as holiday. Whilst the amount of notice given varies depending on the amount of annual leave being taken, this may be more of a hindrance than a help; snowy and icy conditions can be unpredictable and therefore it may not be possible to provide adequate notice when the situation arises. Employers could, however, combat this by implementing policies in advance. 

Implement a policy

Employers may be best protected against winter weather if they implement a policy that sets out a designated procedure to cover situations where weather makes coming into work difficult or impractical. Such a policy could be widened to cover circumstances where disruption is also caused by other factors such as industrial action and major security incidents. This means that the employer can set out what they consider to be reasonable situations where an employee may be late or absent, rather than persistent lateness due to the employee’s poor time management. 

The policy should set out a plan of action as to what will happen when such a situation arises and how lines of communication will be maintained between staff and managers and should be well publicised to make sure that staff and managers are aware of how to carry out their duties. This policy could cover absence reporting, risk assessments for establishing if the site is safe, hybrid working options if appropriate, or other arrangements should working from the site be untenable. 

 

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