Winter Weather: Snow Rights or No Rights?
Added: (Mon Jan 11 2010)
Pressbox (Press Release) -
Try as we might, we can’t control the weather. But with snow and ice continuing to affect the whole of the country, businesses are losing millions of pounds through workers being unable to get to work. But who should bear the cost when employees cannot get to work?
Deducting Pay
Employers may feel they shouldn’t have to pay anyone for not working. On the other hand, employees may feel that they should be paid if they did everything they could to get in.
The law states that an employer cannot make an “unauthorised deduction” from an employee’s wages without express permission. This means that an employer cannot deduct pay without a written authority which is normally found in the form of a clause in the employment contract called a “deductions clause”.
An employer might even have a “bad weather” policy in the company handbook which confirms the employer’s right to deduct pay in such circumstances.
Without such authorisation, employers may be at risk of claims for unlawful deductions from wages and / or constructive dismissal (although a constructive dismissal claim would probably be a bit extreme).
Deductions clauses are very common but clauses which specify that deductions can be made in the event of extreme weather are pretty rare – and employers who rely on a “general” deductions clause to deduct pay for bad weather should recognise that there is a degree of risk attached.
Employers can of course consider alternatives to deducting pay, such as home-working, or agreed holiday. It is important that staff are treated consistently to keep bad feeling (and the risk of claims) to a minimum!
If the employer decides to close the business, pay should not be deducted unless the employees are properly “laid off” using the correct procedures.
Disciplinary action
Employers who suspect employees used the snow as an excuse to take the day when they could have “made it in” could use the disciplinary procedure, but from a practical point of view it might be difficult to prove who has made a reasonable effort and who has not.
Ultimately, employers have a duty of care to their employees and should not threaten disciplinary action for failure to attend work if attempts to attend work would be dangerous for the employee. Individual circumstances will differ.
Time off for Dependents
What about where employees cannot attend work because their child’s school is closed and there is nobody else to look after the child? Employers need to be aware that employees have a statutory right to reasonable time off to look after a child in the case of an emergency, and this situation may fall within this right. Importantly however, the right is to unpaid time off. An employee should not be dismissed or subjected to any detriment (such a being disciplined) as a result of exercising their right to reasonable time off.
Using up holiday
Most employers are not aware that they have the right to require employees to take holiday when the employer wants.
However, employers must give employees the relevant notice period set out in statute (twice the length of leave to be taken). In other words to make an employee take one day’s leave the employer should give them two days’ notice. Such a power should be used reasonably, and this approach is obviously less useful for occasional and unexpected bad weather as the requisite notice could not be given. However, if an employer wants to close a business down for, say a week, due to bad weather, the employees could be required to have the latter part of this closure taken as holiday leave which will save the employer some money.
And finally…
What about those heroes who battle to work wearing snow goggles and tennis racquets tied to their shoes, whilst their colleagues sit at home next to a warm and cosy fire?
Well, all they get is a pat on the back. Those employees who think they are entitled to extra pay or a day off in lieu are sadly mistaken!
For further advice or assistance with any of the issues in this article, please feel free to contact Jon Curtis on 0845 225 2635 www.ironmongercurtis.com.
Jon Curtis
Ironmonger Curtis LLP