Snow days - dealing with absenteeism
This article looks at the most commonly raised queries posed by employers when employees don't make it into work because of adverse weather conditions.
Do I have to pay my employees who didn’t make it in because of the weather?
The strict answer is that it’s an employee’s responsibility to be at work to do their job. So if they are not at work on a particular day and they are not sick or on some other statutory leave, they are not entitled to be paid. The TUC recently advised employers not to dock pay as they feared it would cause unnecessary resentment to employees who have been kept away through no fault of their own. The real issue for employers is to balance encouraging employees to make reasonable efforts to get to work against the responsibility to take care for the safety of their employees.
Having a bad weather policy in place which allows for employees to be paid for a limited period in certain circumstances might be good practice. For example, employees could be paid for one or two day’s absence due to bad weather in a 12 month period provided that they can show that they made every reasonable effort to get to work. Any additional pay could be left to the employer’s discretion, based on the particular circumstances of the employee. Alternatively, an employer may prefer to have a policy under which employees are only paid if they make up the time that they miss due to bad weather or work at home or they can elect to take the day either as holiday or unpaid.
If an employer decides not to pay an employee for time missed due to bad weather, then dependent on when the payroll date falls it is likely they will have to deduct the overpayment from the employee’s next payslip. While for the reason given earlier employees do not have the right to be paid, to avoid a claim that they have made an unlawful deduction from pay, employers should include a clause in the contract of employment allowing them to deduct pay where the employee does not turn up to work due to bad weather or travel disruption. This clause needs to be in place before the deduction is made.
My employee couldn’t come to work as her child’s school was closed. Do I have to pay her?
During the recent bad weather, many parents found themselves having to look after their children whose schools were closed due to the snow. What are their rights? Employees have the right to unpaid time off to deal with emergency situations relating to their dependants. This includes ‘unexpected disruption to childcare.’ As many schools don’t announce whether they are open or not until shortly before the start of the school day, it would seem reasonable to treat school closures due to the snow as an ‘unexpected disruption to childcare.’ The employee is entitled to time off to deal with the emergency, but this time does not have to be paid. However where as happened in this last cold snap schools were announcing that they would remain closed for several days or it was foreseeable they were likely to be closed it might not be credible to say the disruption on the second or subsequent days were ‘unexpected’. There would be no obligation on the employer to pay for those days and the employee would be expected to try to make alternative child care arrangements.
I live near one of my employees and I made it in to work, can I discipline him?
Failing to turn up to work without the absence being authorised is misconduct and a disciplinary offence. However, employers should be slow to discipline employees in such circumstances. They should carry out a careful investigation into why an employee did not turn up before disciplining them. Although the employee might live near his manager, he may live on an untreated road at the top of a hill or only have a two wheel drive car (unlike the manager’s four-wheel drive car with snow tyres). Rather than consider discipline the answer might have been for the manager to offer him a lift. If it is clear that the employee concerned has made no effort to get to work, because for example they’ve no adequate explanation of what they tried to do to get to work, then disciplinary action may be appropriate.
Again a bad weather policy may well help in this type of situation. It would specify who the employee should contact and offer some options. For example it could include a requirement that where possible employees should work at home or for multi site businesses attend a workplace nearer to where they live.
Petra Venton
Cripps Harries Hall LLP
February 2010