Sue Evans, a partner at Lester Aldridge, offers her advice to employers about how to cope when severe weather leaves your employees snowbound or without childcare.
Businesses have experienced considerable disruption so far this year as a result of the severe weather that the country has suffered, and it’s a situation likely to repeat.
Many employees have valiantly battled against the storm to make it in to their places of work, but others have been unable to travel in at all.
Should those employees get paid?
Many businesses have taken the view that they will pay these employees, provided that they are satisfied that the employees concerned genuinely could not make it in to work safely.
However, many businesses have not paid these employees, or have given the employee the choice of taking the time as unpaid leave or as annual leave.
Can employers do this?
In the absence of an agreement to the contrary – yes.
At first sight, this may seem unfair. However, is it fair that employees who take emergency time off for dependents must take that time unpaid, but employees who cannot make it in to work because of the snow get paid?
Particularly, since some of those absent might not actually be ‘snow bound’ themselves but instead, are unable to work because they need to look after children or other dependents due to disruption in their care arrangements (eg. because the school is closed, which is quite a common situation).
Surely, consistency is the key. If employees cannot get into work, generally they do not receive pay for those days.
Employers could treat staff on a case-by-case basis, but if you as an employer chose to do so, beware of any potential arguments of discrimination or less favourable treatment. For example, if you do pay all full time staff that couldn’t make it in to work, but withhold pay from your part time staff, it’s asking for trouble.
Another option is for employers to offer staff to take the time as part of their annual leave allowance. However, employers are unlikely to be able to ‘require’ staff to do this.
You may also want to consider the impact that not paying staff will have on morale. If staff made a real effort to attend but simply could not get in, you might decide to take a view on this and exercise your discretion to pay them – otherwise, if they feel their efforts have gone unnoticed, you might find that they do not try so hard next time!
What if the workplace was closed?
If the decision was taken to close the workplace in view of the weather conditions the position will be different.
Employees will generally be entitled to be paid for such days, unless you are able to rely on a contractual lay-off clause.
What about the future?
• Make sure that your key employees have the ability to work from home
• You need a contingency plan in place to ensure that your business can function if your employees are snowed in!
• Have clear policies in place about whether you will pay employees who cannot make it to work because of the weather, and be clear in what circumstances payment will or will not be made
• Also, ensure that you have reporting requirements in place to ensure that staff notify you promptly if they cannot make it in to work.
Susan Evans is a Partner at Lester Aldridge LLP
For general information about Lester Aldridge please visit the website: www.lesteraldridge.com
