The ‘Big Freeze’ (what are its implications)

The recent wintry weather conditions have left employers feeling as though they are walking on thin ice when it comes to considering their obligations to employees during the cold-snap. For this reason, it is really important that employers are aware of their obligations should the country suffer further inclement weather conditions.

An employer should take the following factors into consideration when seeking to establish the extent of their obligations to their employees during disruptive weather conditions:

• Was the employee unable to attend work due to disruptive weather when the employer was still open for business;
• Did employees make themselves available for work but the employer was closed due to the disruptive weather;
• Health and safety;
• Temporary lay-off and short time working?

Where the employee was unable to attend work

A persistent problem for employers during bad weather is a high level of absenteeism. A common example of this is when employees are unable to commute to work due to impassable roads and icy conditions. What then are the employer’s rights and obligations? Where an employer keeps the workplace open but the employee decides not to attend work, arrives late, or leaves early, the employer is generally not required to pay the employee for their absence. In this situation, the employer should discuss with the employee whether or not they wish to take any days of absence as either unpaid leave or as part of their annual leave entitlement.

Where Employees Make Themselves Available for Work

Another persistent problem for employers during the bad weather is when the employer is unable to open the workplace due to the poor weather conditions. This has commonly occurred where water pipes at the workplace have frozen or burst, negatively impacting on construction or field based companies. What are the employer’s rights and obligations in this situation? Where an employee has made the hard trek to work, or is willing and able to make this journey, only to find the workplace closed, then the employer would generally be required to pay compensation to the employee. This is because the employer has undertaken an obligation to provide work for an employee during specified working hours. Where an employer is unable to provide such work, then it is in breach of the terms of the employment contract and the employees ought to be compensated for time out of work. This also applies when the employer closes the premises early, or sends employees home. It may be worth consulting the employees to see if they are willing to take the time as annual leave. However, this cannot be enforced if the employer has not met the notification requirements of such an enforcement. It is possible to consider lay-off or short time working which will be discussed in more detail below.

Health & Safety Considerations

Some employees may argue that on the grounds of health and safety, it was both impractical and dangerous for them to commute to work. Under these circumstances, it may be unfair and unreasonable for an employer to expect an employee to take any resulting time off as unpaid leave. Obviously, a certain amount of common sense should be exercised in these situations and the employer should take into account the nature of the commute. For example, if an employee lives just around the corner, then the employer is reasonably entitled to expect the employee to attend work. However, if an employee lives 50 miles away say, then the employer may have to concede that the journey is too risky. Where valid health and safety situations arise, the employer may agree with the employee that the day is taken as part of their annual leave or that they work the time back at a later stage. Both the employer and employee should assess situations as they arise, taking all circumstances into account. Consider whether it is less risky to allow the employee to travel to work for a later shift and leave for home earlier than normal? Agree with the employee to attempt the journey but also agree that if it becomes too risky, the employee should turn back. Can the employee work from home or fulfil some duties from home? Is it possible to reschedule the roster so those working further from the premises work later in the week and those living closer come in during the worse weather?

Temporary lay-off and short time working?

Some employers may have included a provision in the employee’s company handbook to allow for temporary lay-off or short time working in the event of a temporary shortage of work. During inclement weather conditions, the employer may activate this provision and apply lay off or short time working until such time that the weather improves. This is a prime example of the importance of issuing employees with carefully worded and thorough employment contracts and handbooks.

In conclusion, it is essential that employers identify their obligations to their employees before taking any action. Where an employer believes that they are not obliged to compensate employees for days out of work, it is important that they should sit down with the employees and discuss a mutually agreeable solution.

If you would like to be put in touch with an employment law/health and safety specialist, please call us on 01923 800444 or email us at experts@meadesandco.co.uk