As we continue into winter with its onslaught of poor weather, including storms, flooding and snowfall, employers may wish to consider what they can do to limit the impact it has on the business.
This article considers the ways in which adverse weather can impact on operations and what employers can do to protect their staff and limit the disruptions to their businesses.
What obligations are there on employers?
Employers have a duty of care to all staff to prevent any harm which could be reasonably foreseen. As a result, during periods of adverse weather, employers must ensure that steps are taken to protect the wellbeing, health and safety of staff. This includes ensuring that sufficient risk assessments are carried out, where relevant, and making adjustments as required.
Acas advises that employers should not encourage staff to travel when it is not safe, for example during adverse weather conditions.
Can employees refuse to attend work due to adverse weather?
The Employment Rights Act 1996 protects staff from being subjected to any detriment for refusing to attend the workplace or take other steps to protect themselves from potential harm, such as travelling to work in dangerous conditions.
As a result, staff may be able to refuse to attend work if it is too dangerous for them to do so.
Additionally, some staff may be unable to travel to work due to:
- Disruption to public transport
- Road closures
- School closures, resulting in childcare issues
- Disruption to flights or other travel on return from holiday
Employers should use caution when deciding whether or not an individual’s health and safety concerns, resulting in a failure to attend work, are reasonable or not.
What arrangements can be made when an employee is unable to attend work
Employers may consider implementing the following adjustments to minimise disruption to the business:
- Allow for flexibility in working hours and duties so that staff can work around particularly dangerous weather or make up their hours on other days.
- Allow hybrid working where possible, enabling staff to continue working from home if they are unable to travel for work.
- Allow staff to swap shifts with others who may be able to travel into work more easily.
- Close the workplace to ensure the safety of staff and reduce wasted costs of leaving the workplace open.
If it is not possible for adjustments to be made to allow staff to continue working, then it may be appropriate to request that staff use annual leave or time off for dependants leave (where applicable) if they are unable to attend work. It is worth noting that staff are entitled to receive twice as much notice as the amount of holiday they are expected to take. As a result, requiring staff to take annual leave may only be possible when notice of disruption can be given. Additionally, staff may not have sufficient leave entitlement left in the year and so a consistent approach may not be possible for all individuals.
When disruption is likely, it is important to notify staff and keep them updated on the employer’s policies and expectations, for example if the business is likely to close due to the adverse weather.
Is an employee entitled to receive pay when they are unable to attend work due to adverse weather?
Staff have a right not to suffer unlawful deductions from wages and this must be balanced against the employer’s requirements for contractual terms to be fulfilled.
Whether a member of staff is entitled to receive pay will depend on the circumstances of their absence from work and what is set out in their contract and the employer’s policies. As a result, it is important that all contracts and policies are clear on the terms under which pay may be deducted for a failure to attend the workplace. It may be reasonable to withhold pay from an individual who is unreasonably refusing to attend work. However, where a member of staff is unable to attend due to a genuine risk to their safety, this is unlikely to be reasonable.
Where an employer has made the decision to close the workplace, staff with contractually guaranteed hours or salary will be entitled to receive their usual pay, unless the employer can rely on contractual terms such as a lay-off clause.
As set out above, it may be reasonable to require staff to use annual leave, or if applicable time off for dependants leave when they are unable to carry out their contractual duties. Whether an individual is entitled to receive pay for dependants’ leave will depend on the employer’s policies on the same.
It is important to ensure a consistent approach is taken to prevent any resentment or issues arising between staff members. As a result, having a clear policy in place will provide clarity and transparency on an employer’s approach. Relevant policies should be circulated to staff, particularly ahead of any potential disruption to limit any uncertainty.
Considerations for employers
Employers should ensure that they implement or update their Adverse Weather Policy so that a plan is in place for dealing with any potential disruptions as a result of adverse weather. It is also worth considering as part of this, when staff will not receive pay to ensure that a consistent approach is followed for each individual. If you require support in implementing or updating your contracts or policies, please do get in touch with our Employment team on 0345 450 5558 or enquiries@stephens-scown.co.uk.