Following the code red weather alert issued when Storm/Hurricane Ophelia landed in October 2017, Ireland is bracing itself (literally) for the first code red alert of 2018 – the Beast of the East (otherwise known as Storm Emma).
The Extreme Weather Warning (Miscellaneous Provisions) Bill 2018 introduced to the Dáil earlier this month seeks to provide guidelines for public sector employers in the event of an extreme weather warning. While yesterday Taoiseach Leo Varadkar commented that in the future employers in the private sector will have to set out specific policy and guidelines as to whether they should remain open during red alerts, such mandatory guidance is not yet in place.
While Ophelia caught many employers short in terms of how to handle "snow days", the lead in time for Storm Emma presents a welcome opportunity for employers to forward plan and ensure employees are well informed of contingency work plans.
We have set out key advice around the issues below that employers should consider when battening down the hatches and seeking to brace for the Beast from the East – from an employment law perspective at least!
- Who pays for Snow Days?
- What if public transport shuts down?
- What if schools close?
- Key points to consider
Who pays for Snow Days?
One of the most pressing questions for Irish employers is whether employees should be paid during the storm in circumstances where they can't get to work.
Strictly speaking, where an employer's office/place of business remains open, any absence by an employee (even in the context of adverse weather) is unauthorised and, therefore, unpaid. Similar to sick pay entitlement, unless provision is expressly made for "snow day payment" within an employee's contract of employment or employer policy, or an implied entitlement in light of customer and practice, there is no legal obligation on the employer to make such payment.
However, where an employer makes the decision to close its premises as a consequence of severe adverse weather, employees should not be penalised for their non-attendance at the workplace and should be paid regardless of their absence. Any non-payment in such circumstances could give rise to a claim for breach of contract or unlawful deduction of wages – not to mention employee disgruntlement and possible industrial relations issues.
One alternative may be to allow employees to work from home while riding out the storm. To the extent workplaces can facilitate such a remote access arrangement employees can continue working unaffected and be paid accordingly – without compromising their safety in travelling to and from the workplace.
What if public transport shuts down?
If the employer opts to keep the workplace open, the "strict" view above may need to be reconsidered in circumstances where public transport is adversely affected by the weather. While the principle remains that non-attendance at an "open" workplace, whether due to adverse weather, strikes, public transport shutdown etc. should not trigger pay obligations, employers are advised to take a reasonable approach in such circumstances.
Employers have a statutory duty to ensure (as far as reasonably practicable) a safe place of work and, equally, have a duty to ensure they do not require employees to compromise their safety in travelling to and from work. Employers should be slow to discipline (or dismiss) employees who are late for work (or fail to attend work) against a backdrop of severe weather conditions as they would likely face short shrift from the Workplace Relations Commission hearing any claim for unfair dismissal.
What if schools close?
Where the workplace remains open but schools or crèches close, different considerations arise. Working parents faced with childcare issues in a situation where their workplace remains open will likely need to take annual leave (or agreed unpaid leave) to care for their children at home in circumstances where they are unable to work remotely/from home. Such a situation does not fall within the legal definition of force majeure leave.
Other points to consider
Where the workplace remains open, employers, guided again by their statutory duty to ensure a safe place of work as far as reasonably practicable, should conduct a risk assessment and minimise any threats to employee safety caused by snow and ice. Employers may need to clear snow and grit pathways to mitigate liability for any personal injuries claim as a result of an employee slipping on ice at the workplace.
Legislation for Extreme Weather – one to watch
The Extreme Weather Warning (Miscellaneous Provisions) Bill 2018 introduced to the Dáil earlier this month seeks to provide guidelines for public sector employers in the event of an extreme weather warning. The Bill aims to ensure the safety of employers and employees during extreme adverse weather and impose penalties for reckless behaviour in the midst of such weather.
The rule of thumb that informs most, if not all, interactions between employers and employees is that of reasonableness. Fortunately, severe adverse weather situations are relatively unusual and generally short in duration such that employee safety and, consequently, employer flexibility are key considerations.
While not (yet) a legal requirement, prudent employers are advised to put in place a practical Adverse Weather Policy, clearly setting out the employer's approach to situations of extreme weather – including the pay scenarios where public transport is shut down or schools/crèches closed. Such a policy should cross-refer to other policies in place in relation to remote working, confidentiality and data protection in circumstances where employees are able to work from home.
Communication with staff is key and employers should ensure they have up-to-date contact information for all staff in order to advise of workplace closures in advance of employees taking "unnecessary journeys" and venturing out into a storm.