Let it snow!

Saturday, November 26, 2016

With Christmas coming and winter really setting in, it is possible we may see some snow. Now personally, I LOVE it! But as an employer and former HR person, I have a different view of it. Snow presents all sorts of legal issues as well as the need for employers to strike the balance work levels and staff morale. This article, from the REC (Recruitment & Employment Confederation), examines some of the key issues associated with “snow days” where employees find it difficult to get to work.

Paying employees who can’t get to work

Unless employees have otherwise agreed with their employer, usually employees are obliged to come into work and attend the office unless they are sick, on holiday or are taking other leave such as maternity or shared parental leave. Regardless of any adverse weather conditions, if the office remains open during “snow days” employees should make every reasonable effort to try and make it into work and if they fail to attend employers could argue that on the face of it their absence is unauthorised and that this is a breach of contract. Most employers may however consider this to be a hard line to take, especially due to its potential impact on staff morale and the relationship an employer has with its employees. A prime example would be if an employee is unable to make it into work due to transport disruption and their normal mode of transport is not available. In these circumstances if there are other means of transport that the employees could utilise then this could be encouraged, but this will need to be balanced with health and safety concerns to ensure that employees do not take unnecessary high risks to attend work.

All employers owe a duty of care to their employees and as part of this all employers must take reasonable and practicable steps to ensure the health, safety and wellbeing of their employees. If it is dangerous for employees to attempt to travel to work employers should take steps to advise their employees on appropriate actions to take to safeguard their health and safety. One example might be allowing employees to work from home.

Working from home

Working from home on “snow days” could be a very feasible solution especially as technological advancements have meant that employees now have increased access to their email and other office applications. However, employees must appreciate that whilst working from home they are expected to perform all of their normal work duties, as far as they can and employers should be reasonable in their expectations and help support employees with resources to help them work from home through the provision of, for example, company mobile phones, laptops or other devices or resources.

Making deductions from employees’ wages for refusing to work

Under the Employment Rights Act 1996, employees have a statutory right not to suffer an unlawful deduction from wages. But where an employee refuses to or is unable to perform all of their duties, they could potentially lose their entitlement to part of their wages.

Many employers at this stage might scratch their heads at how to calculate the amount to deduct and how to ensure that any deductions being made are lawful. The first point is that there must be an express clause in the employee’s employment contract that gives the employer the express right to make a deduction in those circumstances.

When considering the amount to deduct, employers will need to take into account the provisions of the Apportionment Act 1870 which, although a very old piece of legislation, still remains good law. Under section 2 of the Apportionment Act 1870 which applies generally to most employment contracts, pay accrues daily but does not necessarily accrue at an even rate (for example it could, depending on the particular contract, accrue daily over 260 working days rather than 365 calendar days per year).

Depending on the amount of “snow days” and how often employees are unable to work on those days, employers will need to carefully assess the amount to deduct from wages. If employers make excessive deductions from the wages of employees this will leave the employer exposed to potential claims for unlawful deductions from wages or breach of contract claims or both. Moreover, if the excessive deductions cause an employee’s pay to fall below the national minimum/national living wage, the employer could also be exposed to claims under the national minimum wage legislation.

It is therefore important that employers take careful steps to ensure that any deductions being made are calculated accurately, as excessive deductions could also damage the working relationship between employers and their employees and could impact on staff morale.

Due to the complexity of the above many employers may look to an alternative solution such as agreeing with their employees that they will take “snow days” as part of their annual leave entitlement and some employees may welcome this opportunity in order to spend time in the snow with their family and friends. However, there are other types of leave that employers may need to consider.

Unpaid and other leave

Aside from the difficulties that employees may face trying to travel into work, it is also important to remember that many employees will have families and some may have children or dependent relatives. This can cause further complications for employers on “snow days” especially when schools can close at short notice and other care workers may be unable to care for the dependent relatives of an employee. Some employees may not be able to attend work for these reasons.

All employees are entitled to take a reasonable amount of time off during working hours in order to take action which is necessary because of, amongst other things, the unexpected disruption or termination of arrangements relating to the care of a child or other dependant relative.

For example, although a school closure on its own may not be considered as a disruption to childcare, if a school is closed at very short notice, which may be on the particular “snow day”, an employee may be unable to make alternative care arrangements and in those circumstances will have a statutory right to take time off for those reasons. Strictly speaking, the leave will be unpaid, but some employers may not take this approach and may decide to offer a goodwill payment to employees to maintain a good working relationship. It is up to each employer separately to determine how “frosty” they may be in this respect.

Final thoughts

Due to the various legal issues associated with “snow days” and the complications that can arise, employers may find it useful to have an action plan or a particular policy in place to set out what will happen in the event of a “snow day”. Each action plan or policy will be specific to each business separately and because of this the REC does not have model documents on those areas. However, such action plans or policies could include details around any arrangements about working from home, the expectations of employees and what action to take.