The current transport dispute has resulted in many employees being late or unable to attend their place of work. We examine this morning’s events and outline some of the key considerations for employers, including whether they are obligated to pay affected employees.

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Head of Employment, Melanie Crowley Discusses Transport Dispute from Mason Hayes & Curran on Vimeo.

Thousands of commuters across the country were faced with major delays after a number of public transport operators were forced to cancel services due to “secondary picketing” at their premises as part of the ongoing Bus Éireann strike.

What is secondary picketing?

Secondary picketing occurs when workers picket at the premises of an employer who is not a party to their trade dispute. The workers must have a reasonable belief that the employer at the secondary site has the intention of directly assisting their own employer in frustrating their strike or industrial action.

Early in the morning of Friday, 31 March, Bus Éireann workers picketed at the premises of Dublin Bus and Iarnród Éireann. This resulted in a near total shutdown of the public transport system nationwide.

Is this legal?

Whether this activity can be deemed legal depends on the circumstances at play. Secondary picketing is legal if it is carried out in contemplation or furtherance of a trade dispute; provided it is conducted peacefully and certain conditions are met.

In this case, high-ranking trade union officials have confirmed that the action was not sanctioned.

Are employers obligated to pay stranded workers?

Generally speaking and subject to any internal policies, employees are only entitled to be paid in return for work, so if they are late or cannot attend work, they are not entitled to be paid for that time.

What options are open to employers?

If an employee is delayed or cannot make it into work, employers may:

  • continue to pay employees as normal. Before doing this, employers should consider whether this will set a precedent should the disruption continue over a number of days or weeks;
  • allow employees to take the missed time from their paid annual leave entitlement; or
  • agree that employees can make up the missed time at a later date.

Can employers discipline employees who are late or don’t make it into work?

If an employee is genuinely affected by the disruption then employers should not discipline employees.

That said, if an employer suspects that an employee is simply taking advantage of the disruption and is using it as an excuse not to come to work, it is open to the employer to implement its disciplinary procedure, following an appropriate investigation.

Conclusion

Employers should take this opportunity to consider and decide on their own internal policy for dealing with employees who are unable to attend work due to circumstances beyond their control. It is also important that employers communicate this policy to all employees to ensure the position is clear going forward.