Snow Joke - this weather

We're understandably facing a lot of queries from employers at the moment arising from the weather and how it has affected attendance at work.

As a general principle, if it is safe to travel, employees are required to attend work as usual - snow or no snow. If the workplace is open but employees fail to show up (even if they are snowed in at home), employers could treat their absence as unauthorised and not pay them. As with most things related to employment though, that isn't the end of the story because employees who are not paid could claim that an unlawful deduction has been made from their wages - not to mention the potential negative impact on morale that could result.

So what should employers be doing?

If an employer has an "adverse weather" policy already, we recommend that they enforce it - and do so consistently, as well as ensure it gets regularly reviewed.

In the absence of an "adverse weather" policy, we suggest employers think about implementing one - but there are a number of considerations to be factored into the drafting. For example:

what are the requirements for notification by the employee of an inability to get to work - whom are they required to speak to and when (and what are the consequences of failing to do so)?
could certain employees have remote IT access so that even if they are unable to attend the office they are able to carry out their duties from home?
will employees be paid if they fail to attend work (about which see further below)?
if the employer takes the view that the employee has simply failed to make adequate effort to attend work (for example where someone lives within walking distance and they are physically able to walk that distance), will there be disciplinary consequences and if so, what will those be?

For certain staff, the nature of their duties means working from home is not a realistic option but equally, employers are understandably reluctant to pay staff for days when they haven't worked. The pay issue is therefore one of the most crucial in determining any "adverse weather" policy and there a number of options.

If the employer decides not to pay, it would be preferable if they had an express clause in the employment contract permitting non-payment of wages in such circumstances. Otherwise the employer would need to rely on the argument that as no work had been done, there was no entitlement to pay. Whatever the legal rights and wrongs though, not paying can cause serious morale issues which employers may prefer to avoid.

As an alternative to not paying, the employer could permit affected employees to take a day's holiday out of their leave entitlement - or else pay for that day on the proviso that the employee makes up the time lost (by, say, working through a portion of their lunchbreak - always being mindful of the entitlement to minimum rest periods under the Working Time Regulations 1998).

One other option is for an employer to permit each employee a small number of paid "duvet days" each year. This won't generally be attractive to employers who offer generous enhanced sick pay, but where sick pay entitlements are at or around basic statutory levels, they can form part of an incentive package whereby an employee can opt to use their "duvet days" when they are off sick or, for example, unable to attend work due to snow.

Whatever the approach adopted, there are numerous issues to bear in mind and the law of unintended consequences applies, as always. So generous gestures such as paying staff notwithstanding the fact that they've had to stay at home because their child's school has closed for the day may backfire. It is likely to be seen as favouring those with children and can cause serious resentment amongst those staff without any children. At a stretch it is even feasible that this sort of practice could amount to unlawful indirect discrimination as well.

Hopefully this article will help employers avoid some of the more treacherous "black ice" spots created by the current conditions but as ever, if you require more information or specific advice, please contact a member of the Employment Team.