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Published: Sunday, 05 December 2010 13:36
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Written by Sunil Abeyewickreme
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S’no’w Excuses
Winter wonderland or nightmare before Christmas? With the increasingly arctic conditions that the UK is experiencing, this article explores the implications this has for employers and employees alike.
Sunil Abeyewickreme explores and creates a policy for practices.
Strictly speaking, employees have a contractual duty to attend work, even in extreme weather conditions unless they have a legitimate and authorised reason for not attending.. Any employee who does not attend work as a result of the weather conditions could be considered to be on “unauthorised” leave. In many employment contracts, the taking of unauthorised leave is listed as an example of gross misconduct. However summarily dismissing a member of staff in such circumstances is likely to be considered as unreasonable. Whilst unauthorised leave might be grounds for disciplinary action, making a deduction from wages in such circumstances could be unlawful. Employees have statutory protection against any unauthorised deduction being made from their wages. Whether pay can be deducted in circumstances where absence is due to adverse weather depends on how the employment contract has been drafted. The employer should also consider the benefits that may be gained by paying staff such as boosting staff morale and longer term loyalty and productivity may outweigh the short term financial cost in not paying them.
It is good employment practice for employers to make clear what policy will be adopted during adverse weather conditions. Employers should set out clearly their position and explain how it will handle absence related to bad weather.
Alternatives
Employers should think about alternative ways to manage the situation. Some options are:
· giving employees the option to work from home in extreme weather conditions. This is becoming increasingly practical given the relative ease of access to laptops and home computers, although clearly this will depend on the nature of the business. However this just might not be appropriate for clinical staff, eg. dental nurses;
· allowing employees to take the days off as part of their annual leave; or
· paying employees but require them to make up the time at a later date.
Whatever the policy implemented, employees should not feel any undue pressure to put their safety at risk in any attempt to get into the office. If it is safe to travel, employees should come into work as usual. If employees are worried that the conditions are not safe or if they are dependent on public transport systems, an employer may consider that the employee should remain at home and do what work they can from there.
Office remaining open
For those employees who do make it to work, they are entitled to receive a warm and safe working environment. Regulations exist which place a legal minimum working temperature of at least 16 degrees Celsius.
Further those employees who do manage to attend work, those efforts should not go unnoticed and employers should observe and adhere to the weather warnings and allow employees to leave early to avoid dangerous travel conditions in their return journey home.
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Office closure
If the business premises are to be closed at short notice as a result of the adverse weather conditions and consequently no work is available for an employee, the employer will not be able to withhold pay.
If this happened, employees would be able to claim that an unauthorised deduction had taken place and recover any sums owed, save for where there is a “lay off” clause in the employment contract or if the employee has provided its consent to the deduction.
The only exception to this is if you have a ’lay-off’ clause in your contracts of employment, or the employees expressly consent to being laid off without pay. Advice should however be sought if an employer seeks to rely on an unpaid lay off clause due to the complex statutory regime that applies.
During periods when the “lay-off” clause is being relied upon, employees would be entitled to statutory guarantee paywhich is the minimum that should be paid for any complete day staff are laid-off work. Statutory guarantee payments are made for a maximum of five workless days in any three month period. If you normally work fewer than five days a week, you may be paid for the number of days in your normal working week in any three month period. If the employee has been asked to do some work, but not the usual amount of work, during a particular day, they cannot claim statutory guarantee pay for that day.
The daily rate of the guarantee payment is worked out by multiplying the number of hours the employment contract shows should have been worked that day by the guarantee payments hourly rate.
There is a limit of £21.20 per day (from 1 February 2010) on the guarantee payment rate, giving a maximum guarantee payment of £106 for five workless days.
Snow Excuses
If an employer genuinely believes that an employee is using the weather conditions as an excuse for absence, this could be a disciplinary matter.
However, it is doubtful that most employers would want to spend time and resources investigating the circumstances of each individual worker who is suspected of using the snow as an excuse.
In obvious or repeated cases, the employer may consider an investigation of the matter in accordance with the disciplinary procedure.
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Snow Policy
Given that the UK is increasingly experiencing bouts of inclement weather, it would be sensible to introduce a policy on adverse weather conditions and consider the most appropriate ways to manage such situations.
Such policies should be communicated to employees so that they know what is expected of them in extreme conditions and avoid any confusions and disputes when the snow inevitably arrives.
You may also want to make it clear that employees are expected to make reasonable efforts to get into work (for example, using alternative travel arrangements).
About Hill Dickinson’s Dental Healthcare Team
Hill Dickinson LLP has one of the UK’s strongest and broadest legal teams dedicated to the dental healthcare sector with 7 partners assisted by experienced solicitors. The team is lead by Sunil Abeyewickreme who is regarded as an experienced and highly respected lawyer in the field of dental healthcare. After being called to the Bar, Sunil was appointed as Senior Legal Adviser to the British Dental Association, a position which he held for four years. He has acted for numerous dentists throughout the United Kingdom.
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