Mentor Adverse Weather Q&A
Employment Law & HR update 10/11/2011
As we move into the later part of 2011, we are coming to that
time of year where the weather can have quite an effect on you and
your staff. Be it snow stopping them getting out of their drive, or
adverse weather affecting public transport, there are many
questions you may have about what you need to do.
To help, we have taken some of the most popular questions from
our Advice Service during this type of situation and answered them
below.
Q. What happens if staff are unable to get themselves
into work - do I have to pay them?
A. No. If your employees are unable to get
themselves into work (for whatever reason) then you are not legally
obliged to pay them. However, you could consider alternatives, such
as temporary home working or asking staff to take part of their
paid holiday entitlement.
Q. Is this sort of absence a
disciplinary matter?
A. A reasonable employer would normally count
such absence as "authorised absence", if the employee has phoned in
to inform the employer that he/she is unable to attend work, and so
it is not a disciplinary matter. Employers should also bear in mind
that different employees may have different circumstances - perhaps
a long commute or living in a particularly snowbound area. For this
reason it is impossible to make a general rule about taking
disciplinary action against those who do not get into work just
because some employees do make it into work. Disciplinary action
would only be appropriate if you have good reason to believe the
employee is being untruthful about the snow being the reason for
not attending work, or to reinforce the message that employees must
notify you of their absence if they have not done so.
Q. What if schools are closed and
staff have to stay at home with their children even if they could
get to work?
A. There is no obligation to pay staff who are
absent on this basis. It is also a tricky area as the basis for
taking any sort of disciplinary action. Under the law, all
employees do have the right to unpaid "time off for dependants",
and this would also include a situation where a member of staff has
to take time off to assist an elderly relative, for example.
However, such time off should be no longer than what is required to
deal with the immediate emergency - normally one or two days would
be appropriate. Where the weather causes extended school closures,
there is no definite rule that says parents have the "right" to
time off work to look after children. Some will find it easier than
others to make other arrangements - perhaps by using relatives to
look after their children. In dealing with such situations,
employers must act reasonably, and it is not advisable to pursue
disciplinary action in cases where an employee's absence is cased
by a school closure.
Q. Do I have to pay my staff if I
cannot provide them with any work?
A. In general - yes you do, and at their
normal rate of pay. In some cases, employees can be "laid off"
without normal pay if there is a specific term in their contract
allowing the employer to do this. When employees are laid off in
this way, they are entitled to a statutory payment from the
employer called a "Guarantee Payment". The current rate is a
maximum of £22.20 per day. Payment is limited to a maximum of five
days in any period of three months. An employee must have completed
one month's continuous employment in order to qualify for a
Guarantee Payment. On days on which a Guarantee Payment is not
payable, employees may be able to claim Jobseekers' Allowance and
employees should contact their local Jobcentre to see if they
qualify.
Q. Can I make staff take holidays from
their annual holiday entitlement if they don't turn up for
work?
A. You could only insist on this if you have a
condition in employees' contracts of employment allowing you to do
so. In any case, it might not be a good idea for employees to use
much of their annual holiday entitlement so early in the year, if
your holiday year starts in January.
Q. I've heard some employers ask their
staff to work from home in bad weather - can I do
this?
A. Working from home is much more common than
it was even five or six years ago, thanks to new technology. Some
employers have staff who are permanently home-based. However, the
issues are more complex with staff who normally work at the
employer's premises - and, of course, not all work is suitable for
home-working. In the very short term, it is likely to be reasonable
to ask staff who can do some work from home to do so - for example
if they have a laptop computer or telephone and are able to get
some work done away from the office. Equally, if it is the employee
who asks to work from home for a few days, this might be a
reasonable request. In this way, employees would avoid losing pay
for days they cannot get in to work. However, non home-workers are
unlikely to have the infrastructure available to allow them to work
efficiently or safely - such things as internet connections, desk
space, and material to work on. Employers also need to consider the
health, safety and security implications of having staff working at
home, as well as supervision arrangements. Again, what is
reasonable in the short term might not be appropriate for a
longer-term arrangement. In the long term, where the nature of the
work allows it, employers and staff might consider reviewing
working arrangements to allow for permanent or occasional home
working - this might benefit both the employee (greater flexibility
and less time and expense commuting) and the employer (saving
office costs and allowing for business to continue in severe
weather conditions).
Q. Due to the weather, my business is
unlikely to be busy and I don't need my staff working full time, is
there anything I can do?
A. For most employers, if the employees report
for work, there is little you can do. It might be possible to agree
that the employees take some holiday, but employers cannot insist
on this unless the employee's contract provides for this to happen.
In some cases, an employer might be able to impose "short-time
working" (a temporary reduction of working hours) but only provided
there is a specific contractual right to do this. This might be
contained in an agreement with a trade union representing the
workers, or in their contracts of employment.
Q. As a result of the weather, my
business has been so badly affected that I will have no option but
to close the business permanently. What are the implications of
this for my employees?
A. This will be a redundancy situation, and
you will have to make redundancy payments to all staff with more
than two years' service. In addition, staff will be entitled to
receive pay for their notice period. Although closure of a business
is a genuine redundancy situation, the law about the procedure to
follow, and the amount of payments due is complex and can lead to
claims for Unfair Dismissal and compensation if you get it wrong.
Mentor can provide your clients with advice relating to potential
redundancy situations via our 24 hour Advice Service.
If you would like further information,
and already subscribe to
RBS
Mentor, please call
the Advice
Service. If you would like more information on
how Mentor could help your business in situations like this and
many others, contact
us today for
information.
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