Hannah Parsons: Winter commuting – is it legal not to pay staff that can’t get into work?

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Hannah Parsons: Winter commuting - is it legal not to pay staff that can’t get into work?

With heavy snowfall already upon us, UK commuters are once again facing the prospect of travel disruptions that will hamper their sterling attempts to get to work.

At its height, last year’s ‘Beast from the East’ was estimated to be costing the UK economy in the region of £1bn a day as transport came to a standstill and workers (and of course customers) stayed at home.

But what are the specific rules when members of staff are not able to come into work due to delayed or cancelled trains? What should you do if employees can’t make it into the office due to adverse weather conditions?

Here are a few things to consider when it comes to winter commuting and employment law regulations…

If an employee can’t get to work
There is no law that says you have to pay an employee who can’t get to work due to travel disruption or adverse weather conditions. Of course, it may say in their employment contract that they will be paid under these circumstances, in which case you must honour this. It is usually not possible (or advisable) to force an employee to use up annual leave for any days they miss due to travel issues, although your employees may wish to nominate a day as annual leave rather than not receiving any payment for it.

While it is legal not to pay staff who are unable to get into work (subject to what is written within their contract), it is usually best to be flexible in these situations and consider in each case whether or not to pay employees in these circumstances. Bad weather is an obstacle which is outside of anyone’s control and it is inadvisable to create incentives for employees to risk their safety attempting to get to work in poor conditions.

Sometimes, an employee may say they cannot come to work due to school closures forcing them to stay at home and look after their children. If the school was closed at short notice, this would be likely to constitute an emergency relating to a dependent, in which case they would be entitled to a time off to arrange care for their children. This type of leave does not have to be paid, although an employer may choose to have a different policy.

If disciplinary issues arise due to an employee being unable to get to work (for example, if it is part of a similar pattern of non-attendance or you suspect they simply chose not to come in), it is important to follow a fair procedure when tackling the issue, as you would with any disciplinary matter.

If the office is closed
If you have closed the office because it is inaccessible, or not enough staff are able to make it in, you should usually still pay employees for that day. Withholding pay when employees are unable to work through no fault of their own could be an unauthorised deduction from wages or a serious breach of their contract of employment. In those circumstances, your employees may be able to bring a legal claim against you for non-payment of the wages and any losses.

Some employment contracts do however contain a temporary ‘lay-off’ clause – if this is the case, you can refuse to pay full pay to employees for a limited time and for days when the workplace is not open.

General advice
As travel disruption is likely to occur reliably year after year, it is recommended that you put a policy in place covering what is expected of employees if the weather prevents them from getting to work and at relevant times of year dust off the policy and remind employees of what it contains. This will ensure that there is no confusion regarding non-attendance and how it will be treated during bad weather.

If your business suffers particularly from widespread travel issues or is particularly exposed in poor weather conditions you may wish to consider a policy of allowing working from home or other off-site alternatives if the nature of the work allows it.

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About Hannah Parsons

Hannah Parsons is a Principle Associate Solicitor at DAS Law. She leads a team of lawyers who provide round the clock legal advice and guidance for clients offering a range of expertise. Hannah’s background is in employment law and she spent almost 15 years as an employment solicitor conducting litigation for Employers and Employees and providing HR Support services. Hannah continues to maintain a professional interest in employment law whilst managing the legal advice department, by carrying out in-house training and HR support for clients and providing telephone advice on a wide variety of employment law and HR related matters.

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