ashcloudAs the season of goodwill and much merriness is upon us we find ourselves asking what mean, Dickensian employer would deny a worker his wage just because of the weather?

After all, since at least the mid eighties we have come to expect to be paid even when we do not attend work. So great now are our expectations that the clarion call and founding economic principle of 19th century factory economics of “No work, No Wages” now means little to many, or draws sneering contempt from those who have heard it.

What happened? When did we allow the link between hard work and financial reward to become so broken?

The answer is no doubt a complex one, more for the sociologist and historian than the legal commentator to tease out, but what does stand out clearly is the wealth of examples of the disconnect between work and wages. Enhanced sick pay (six months full pay and six months half pay being common in the public sector); maternity entitlement of six week’s pay at 90% of average weekly gross earnings (with more coming out of Europe soon) and with some organisations making enhanced contractual payments on top; paid paternity leave; bereavement leave; and ‘emergency’ days are all examples of this. Employees even accrue holidays when off sick or on ordinary maternity leave – days off for having days off.

Amid all these entitlements, some employers may find themselves currently asking what is the contractual position with employees who fail to attend work citing weather conditions as the reason?

The entitlement of an hourly-waged employee to be paid generally depends upon work being done. That situation, however, contrasts with an employee who is entitled to a salary. Unless the contract of employment entitles the employer to withhold part of the salary for absences then there is authority for the proposition that the employer must nonetheless pay the full salary. Section 13 of the Employment Rights Act states that a deduction from wages arises where the total amount of wages paid is less than the total wages properly payable. Where the contract of employment does not make a direct link between providing work and getting paid then the employee would be entitled to argue that the payment is properly payable as part of normal salary.

It seems clear that this remains the case even where the employees are themselves in breach of contract by failing to attend.

Unless the contract of employment clearly states the expectation of the employer and the consequences where that expectation is not met, then the argument would be that salary is properly payable regardless of whether the employee attended work, because payment and work are not mutually dependent. Employers, therefore, who wish to make no payment for unauthorised days absence are best advised either to obtain consent or alternatively to incorporate a relevant provision into the employee’s contract.

Notwithstanding the value of employee goodwill, perhaps one resolution for employers to make and keep for the New Year would be to review contracts of employment and to seek, through appropriate procedures, to close the loophole which allows employees to profit from non attendance. Without the Christmas ghosts, Scrooge would no doubt have approved…

David Ogilvy, Partner in employment law and litigation, Turcan Connell