Adverse weather conditions such as snow, ice and flooding can cause road closures, public transport cancellations or delays or school closures which may prevent employees getting to work. A number of issues can arise for employers and employees including whether employees should be paid when they do not come in to work. Read on for more information.
Should employees be paid if they cannot get in to work?
The answer to this question depends on a combination of rights: express and implied contractual rights and the right not to suffer unlawful deductions from wages.
Wages cannot be deducted unless this is authorised by statute, by a contractual term or the employee has given their prior consent.
Whether there is a contractual right to be paid will depend upon the construction of the employment contract so it will be necessary to look, for example, at express written or oral terms, wording in a staff handbook or an implied right derived from custom and practice.
If there is no obvious express or implied term the basic contractual position is that wages are not payable unless the employee has provided consideration. Consideration might be the actual performance of work by the employee or alternatively the employee’s ‘readiness and willingness’ to work if they are able.
The general view appears to be that employees who cannot get in to work are not ‘ready and willing’ to work and are therefore not entitled to be paid, irrespective of the reason for absence. However the position is not that straightforward and there are authorities that support the position that employees may be entitled to be paid if the non-performance of work is involuntary and unavoidable.
Should employers pay employees anyway?
Leaving to one side the legal uncertainty, there are several reasons why it makes business sense to pay employees even if they are unable to get in to work, such as maintaining employee relations, the risk of bad publicity and the potential for employees to falsely call in sick in order to claim sick pay.
Paying all employees regardless of whether they can work is not without its issues. Those employees who make the extra effort to get in to work may resent colleagues who do not make an effort yet are still being paid to sit at home. Employees who do manage to get in to work should have their efforts recognised.
Alternatives
Homeworking or working from another site may be an option.
Employers might consider closing if it is not economical or safe for a workplace to remain open. In this situation employees who have guaranteed hours or salary should still be paid if they are ready and willing to work, unless the employer can rely on contractual terms such as a lay-off clause.
Employers could give employees the opportunity to take the absence as paid annual leave, assuming they have enough holiday days remaining.
Employers could also give employees the opportunity to make up lost hours on other days, even if there is no flexi-time or annualised hours scheme in operation.
Employees are entitled to take a ‘reasonable’ amount of time off to look after children due to unexpected disruption, such as the closure of a school or nursery because of bad weather. Employees cannot be forced to use up their paid annual leave in such circumstances but neither is there a statutory right to be paid for such time off.
Alternatively employers may give limited paid leave (e.g. one or two consecutive days) after which time employees must either take unpaid leave, make up the hours or count it against their paid annual leave entitlement.
Can we help you?
If you need advice about your individual situation, please contact us. Call on 01522 440512 or visit our website www.lincslaw.co.uk for more information.
Kathryn Bolton
Associate, Specialist Employment Law Solicitor
Lincs Law Solicitors, Lincoln