14 February 2018

Now that the dust has settled, or perhaps more accurately the snow has melted, employers will now need to consider what, if anything, to pay staff following the recent adverse weather conditions.

This is not an easy issue and has given rise to controversy. Even the Scottish Government got involved in the debate suggesting that employers should pay individuals given the weather warnings that were issued. But what is the law?

The contract – what does it say?

Entitlement to wages is ordinarily governed by the contract of employment – the wage/work bargain. What does the contract of employment say about payment of wages? This is not necessarily an easy matter since the contract may contain express terms (terms which are written down) but also implied terms (terms that are so obvious that the parties did not write them down). The first step therefore is to carefully consider what the contract says about payment of wages in these cases.

All relevant policy documents should be considered to determine whether or not entitlement to payment is addressed. For example, is there an adverse weather policy which sets out the position? What about custom and practice?

The legal position

If the contract does not expressly or impliedly put the position beyond doubt, the next step is to look at the common law. This is the legal position that has developed over the years as a result of decided cases. Entitlement to payment differs depending upon whether or not the workplace is open or not.

If the place of work is open for business and an employee does not attend work (due to no fault of the employer, for example, where employer provided transport is cancelled), provided the contract does not say otherwise, in such situations the employee who does not attend work is not normally entitled to be paid. If the employee is entitled to work from home or another workplace and does so, the position would obviously be different.

If the workplace is closed, provided the employee is ready and willing to work and the contract does not say anything to the contrary, the employee would be entitled to be paid.

Avoid unlawful deductions - consent

Employers need to be careful in this area because deducting sums from wages could be unlawful and lead to an Employment Tribunal claim. If consent has been given for a deduction, the deduction may be permitted. Consent can be obtained via the contract itself, provided it is sufficiently clear and precise, or from some other source. Thus before deducting sums from wages, employers should ensure there is clear and express consent.

Treat employees reasonably?

Employers should also respect the implied term of trust and confidence that exists in the employment relationship. This states that neither party will act in such a way, without just and proper cause, so as to destroy or seriously damage the trust and confidence that exists within the employment relationship. The way in which the employer manages the relationship is important.

ACAS suggest that bad weather could be used as an opportunity to raise morale by treating employees well. In this regard ACAS suggests looking at alternatives to simply non-payment, such as working from home, making up time, working elsewhere or even taking holidays (by agreement). However, care is needed, for example, with regard to working from home, to ensure all relevant data protection issues are considered, health and safety is protected and that security of the individual and data is preserved.

One BTO client decided to pay all staff and reward those who attended work by paying an attendance bonus. That is a good example of rewarding staff.

A statutory guarantee payment

If an employee is ready and able to work but is not given work by the employer, the contract might expressly allow the employer not to pay the individual. In such a situation, the employee may be entitled to a statutory guarantee payment where the conditions relating to this payment have been satisfied. Conditions include the employee being employed for over a month, the employee being given no work where they would otherwise be provided with work. The maximum payment is £27 a day (increasing to £28 from April 2018). There is a maximum entitlement to 5 day’s payment in any 3 month period.

Other considerations to protect the organisation

There are also a number of other issues to consider in this area. For example, is a business continuity plan in place to deal with these types of issues? Advance planning is key in these areas, working out all contingencies and how they will be managed.

The impact upon employee relations is an important consideration to ensure that staff remain engaged, committed and productive. Again thinking about these issues and pre-planning is good practice.

Ultimately having a policy that deals with the issue as far as staff are concerned which is consistently applied in each case ensures both employer and employee know exactly what is to happen in these cases and that business is protected.

Other legal issues

Reasonable adjustments should be made for disabled employees where required (if for example the adverse weather impacts upon disabled employees). It is also important to ensure that the impact of relevant actions do not adversely affect those of a particular protected characteristic more than others. Thus requiring staff group X attend work while everyone else remain at home could potentially affect more men than women (if group X comprises men only). In such cases, it ensure a clear and compelling justification exists. A risk benefit analysis should be carried out.

Employees are also entitled in some cases to reasonable unpaid time off to deal with an unforeseen situation in relation to dependents, which could include closure of schools or sudden illness. Again this should be managed carefully.

In summary

The key is to plan ahead. Before deducting sums from wages due to employees, consider what the contract says and ascertain the reason for the absence. Ultimately, take advice from your specialist employment lawyer. Failing to prepare is preparing to fail.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.