The first week of February 2009 saw the UK witness its heaviest snowfalls for the best part of two decades. Then, in January of this year, visitors from the Antarctic would have felt quite at home as the worst winter and snow falls since 1963 hit home shores.
In both instances, thousands of people were unable to travel to work, while hundreds of schools and businesses were forced to close.
Here we are in December 2010, and the snow’s worse than ever – and right across the UK, too. Unprecedented outpourings from the heavens have seen roads blocked, the rail network severely disrupted and (today) the closure of Edinburgh and Gatwick International Airports. It’s a commuter’s misery.
Snow has been particularly heavy around Gatwick, of course, with some 25 cm recorded in certain places (and 15 cm of that snow fall happening overnight).
Review conducted by the Government
A review of how the transport operators have coped with the icy, frezzing cold conditions – or not, as the case may be – is already underway courtesy of transport minister Philip Hammond.
Meantime, in England the Met Office has this morning issued heavy snow warnings for the North East, Yorkshire and Humber, London and the South East, as well as the South West.
In Scotland, the weather warnings are applying to Grampian, Strathclyde, Central, Tayside and Fife, as well as the South West and Lothian and Borders regions.
Of course, snow isn’t the only weather phenomenon that businesses battle. Cast your mind back to June 2007 when the severe flooding in South West England, the Midlands and Yorkshire and Humberside killed 13 people while leaving 48,000 homes and 7,000 businesses deluged with water.
In November last year, those in Cumbria and the Cockermouth region were devastated when a freak storm drenched everything in its path.
The $64,000 question to be answered
The $64,000 question when weather like we’re seeing now strikes with a vengeance is this… What should employers do if their employees are unable to come to work?
Also, what are the main issues that employers must consider?
Here are some salient questions and answers to help you through what can be something of a legal minefield if you’re not fully aware of the law…
Are employers allowed to deduct pay, or otherwise force employees to take annual leave, if they cannot get to work because of snow and ice?
The starting point to answering this question is that employees are only entitled to be paid for the work that they do. If employees are unable to get to work, or they cannot carry out their work, strictly speaking an employer does not have an obligation to pay those employees.
Employers should consider the employee’s Contract of Employment and any workplace policies that may apply.
Some employers will already have ‘bad weather policies’ in place so that those who are unable to work because of snow or the like know whether or not they’ll still be entitled to pay.
Employers who don’t have such a policy in place ought to consider introducing one so that both parties involved know their rights in relation to time off in adverse weather conditions.
The current widespread disruption across the country and the warnings not to travel unless absolutely necessary (most of them being fed through by the news bulletins) may dissuade employees from even attempting to travel to work. That being the case, some discretion may need to be exercised even when a policy is clear.
What if an employer suspects some employees are using the bad weather as an excuse not to come to work?
One of the most effective ways of reducing this problem is to communicate to employees that any further days off work will be deducted from annual leave, or taken as unpaid leave.
Employers will soon see who genuinely cannot make it into work and, similarly, those who can.
This approach may be somewhat Draconian in circumstances where the weather causes widespread and very obvious disruption (as, indeed, is very much the case at present).
In truth, it’s likely to be more beneficial in situations where we have some snow but it’s not reported as causing any significant amount of disruption.
Should employers allow employees to work from home in circumstances where snow makes travel difficult?
In a nutshell? Yes. Employers should consider allowing employees to work from home.
The Chartered Institute of Personnel and Development has often praised those employers who have the common sense, technology and managerial approach to allow employees to work from home during periods of severe snow and ice.
Obviously, it’s not always practical for some employees to work from home, but many office-based employees can still be productive while working from home as long as their computer systems are working and the Internet connection isn’t having an off day.
Employers should look at the Contract of Employment and any internal policies, the type of work a particular employee is required to carry out and the facilities needed to enable a particular employee to work from home.
Bear in mind that in weather conditions such as those presently with us, employers may be considered by an Employment Tribunal to be unreasonable if they refuse to allow an employee to work from home where it’s possible for them do so.
Allowing employees to work from home on occasions where there’s widespread disruption, together with advice to avoid travelling, can also help employers avoid any potential Health and Safety issues.
There’s nothing wrong with encouraging an employee to get to work if it’s reasonable for that employee to do so. However, employers should distinguish between encouragement and undue pressure.
Employers have a Duty of Care towards their employees, and it’s not necessarily in an employer’s best interests to place employees under pressure to travel to work at a time when all advice emanating from the authorities is to avoid travelling at all costs.
Can employers tell employees not to come to work and subsequently penalise them?
Although there’s no concrete answer to this question, such an approach is not likely to be well received.
When the severe snow that fell in February 2009 first hit, members of the Transport Salaried Staffs Association (who work on the London Underground) were told not to go to work because the buses – and most of the tubes – weren’t operational.
The employees were subsequently told that the time away had to be taken as unpaid leave, or otherwise deducted from annual leave.
Trade Unions have criticised such ‘hypocritical’ decisions, and have often expressed their anger at the way in which loyal staff have been treated during times of severe weather incursions.
Are employers under any kind of duty to pay up on employees’ expenses resulting from the bad weather?
No. There’s no duty on employers to pay expenses to employees that occur as a result of the bad weather (such as overnight accommodation if an employee becomes stranded) unless the contract stipulates otherwise.
What if employees are unable to get to work because the schools are closed?
The most important thing is for employers to consider individual requests, but also to act consistently and apply the same policy to all employees.
Where schools are closed, affected employees may be entitled to time off work for dependents. An employee is legally entitled to take a “reasonable” amount of time off work to deal with emergencies involving a dependent.
A dependent is defined as an employee’s spouse, civil partner, child, parent, anyone who lives in the same household (excluding tenants and lodgers) as the employee and those who reasonably depend on that employee to make arrangements for the provision of care.
An employee is only entitled to time off for dependents in certain situations, two of which may be applicable in snowy weather:
because of the unexpected disruptions or termination of arrangements for the care of a dependent
to deal with an incident involving a child of the employee, and which occurs unexpectedly in a period during school hours (or hours of any educational establishment)
When is a situation an emergency?
There’s no set answer as to when a situation will be an emergency. Employers should consider each request on an individual basis.
Recently, Employment Tribunals have made it clear one factor that’s particularly relevant to the question of whether or not an employee is entitled to time off for a dependent is the amount of time between an employee knowing that there’s a risk of disruption and the risk becoming fact.
For example, if an employee knew on Monday that there was a significant chance of heavy snowfall on Tuesday, and that the school will be shut, an Employment Tribunal might well decide that this was sufficient time for the employee to make childcare arrangements.
It’s more often the case that employees will not know until the morning that their child’s school will be shut on a given day.
In this situation, it’s advisable for employers to treat the employee’s absence from work as an emergency, at least until the employee has made suitable childcare arrangements.
All employees are entitled to time off work for dependents regardless of length of service and whether or not they’re employed on a full-time or part-time basis. Workers and the self-employed are excluded from the right to time off for dependents.
Procedures already in place
If an employer suspects that this right is being abused, the employee should be dealt with in accordance with the contractual or workplace disciplinary procedure already in place.
Employers are not under any duty to pay employees for time off work for dependents, and may therefore need to ensure that any policy dealing with absences caused by adverse weather dovetails with a policy dealing with time off for emergencies.
Wherever you are in the UK, if you’re ‘with snow’ – and most of us are – then please do take care.
The other $64,000 question is… Will we see a White Christmas this year? It’s a fair bet the Turf Accountants might be a little worried just now!
Brian Sims is the Editor of SMT Online and Gareth Edwards is a partner in the employment team at Veale Wasbrough Vizards
