If the forecasters are to be believed, a big freeze is on the way in the New Year. The last big freeze in 2009/2010 caused havoc for employers and their businesses. So in anticipation of similar inclement weather, what can employers do to prepare themselves?
Unsurprisingly for employers, having a policy in place to deal with adverse/inclement weather is the first step. Like many other areas of employment law, having clear and detailed policies in place is the departure point for employers in managing situations in their workplace and minimising disputes over what an employer's position is.
Tips for drafting an adverse weather policy:
- The starting point of any policy should be an acknowledgement that during severe inclement weather there is no automatic legal entitlement to remain at home and receive pay. The strict legal position is that if the office is open and employees cannot make it in because of snow/bad weather, then this absence is unauthorised and there is no obligation to pay them. An employer should set out the options open to employees – any time off work in these circumstances will be unpaid ( this option should preferably be supported by a contractual clause to this effect); or they will be paid but expected to make up the time later, or they can request to take the time off as annual leave.
- However if an employee's mode of transport is affected, because of rail disruption or some other break in infrastructure services, then the above "strict" view may need to be revisited. Sitting alongside this is a health and safety aspect, employees should not feel pressurised into making the trip and compromising their safety.
- The policy should also address the scenario of an employee making themselves available for work but an employer is unable to open the business for some reason (due to frozen pipes etc.). Where an employee has made themselves available for work only to find the workplace is closed, then an employer is generally, in those circumstances, required to compensate the employee. The rationale behind this is that the employer has undertaken an obligation to provide work for the employee during specified hours. Where an employer is unable to provide such work, then they are in breach of an employee's contract and they should be compensated accordingly.
- Some employers may have a provision in their handbook which allows for temporary layoff or short time working in circumstances where there is a temporary shortage of work. The inclement weather may allow the employer to invoke this provision and rely on it although in reality the business would have to be closed for a significant period of time in order to successfully invoke this clause.
- A flexible approach to alternative means of working should be considered (i.e. such as working hours and location). The use of modern technology such as smartphones and laptops can assist in remote working however employers need to bear in mind privacy and data protection issues in allowing same and should cross refer to any Bring Your Own Device (BYOD) policies to ensure their interests are adequately protected. A home/remote working policy may also assist in setting an employer's expectations in this regard.
Notwithstanding all of the above and given that inclement weather conditions tend to be short in duration, an employer may wish to consider the goodwill gesture of paying in such circumstances set against the financial cost to the business. This however is a matter for each business to consider for themselves.
While legislating for the weather is impossible, having a clear well thought out policy helps in setting out an employer's expectations. It will ensure that employees know the potential options and outcomes open to them for non-attendance and hopefully minimise disruption to the business.