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Susan Evans

Lester Aldridge

Partner

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Legal Insight: How to cope with tube strikes

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Passengers are expected to face widespread disruption on the London Underground from tomorrow (24 April) due to a four-day strike by maintenance workers that is likely to affect services.

The action looks likely to go ahead as planned because talks to avert it ended yesterday without agreement, according to the conciliation service Acas.
 
The row is over pensions and benefits, which some Tube Lines employees feel are being unfairly withheld from them. But what about your business – what are the implications if staff are not able to get into work?
 
During times of travel disruption or extreme adverse weather, some employees go to great lengths to get in despite a journey of several hours’ duration. Others, however, may seize the opportunity to stay at home. 
 
Here are the answers to some common questions about employers’ legal position in this situation:
 
1. Do I have to pay my employees if they do not make it into work?
 
Payment depends on whether individual employees have a contractual right to be paid in these circumstances.
Therefore, look at the terms of their employment contract, any policies that may be in place and any customs or practices that might have developed over time.
 
Moreover, what approach have you taken in relation to previous tube strikes? There is an argument that you should be consistent.
 
In the absence of any contractual rights, staff members are not entitled to have their wages paid. As a result, some employers request that they take the time off as part of their annual leave entitlement or as unpaid leave.
 
2. Can I choose to pay my employees anyway?
 
Absolutely! You may decide to pay your staff even if they don’t make it into work on the strike dates. The positive morale and good publicity generated by this additional benefit may justify the inevitable cost.
 
It may also deter employees from being tempted to call in sick in order to still receive payment. But this situation may cause resentment from other employees, who are not paid due to circumstances that are wholly outside of their control.
 
Employers can opt to treat staff on a ‘case-by-case’ basis. However, should you choose to tackle the issue in this manner, bear in mind that staff members may try to claim that such an approach is discriminatory, or that it amounts to less favourable treatment. Therefore, it is far safer and better practice to treat staff consistently.
 
3. How can I prepare for any future disruption?
 
There is no doubt that, at some point in the future, we will face more transport disruption or be knee-deep in snow. Prevention is better than cure, so be prepared:
 
  • Think of ways around the disruption – arrange lift-shares for employees or provide taxis to collect them
  • Be flexible – give personnel the ability to work from home or allow them to follow alternative working patterns
  • Implement a policy that clearly sets out what will happen if these kinds of circumstances arise. Will employees be paid? Will it count as annual leave?
  • Put reporting requirements in place to ensure that staff notify you promptly if they cannot get into work
  • Devise contingency plans to make sure your business can function if a large number of staff are absent at any one time.

Susan Evans is a partner at law firm, Lester Aldridge.

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Susan Evans

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Read more from Susan Evans
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