THE BIG FREEZE DOES NOT HAVE TO CAUSE A BIG HEADACHE

Peninsula Team

November 11 2010

The recent wintry weather conditions has left employers feeling as though they are walking on thin ice when it comes to considering their obligations to employees throughout the cold-snap. It is important, therefore, for employers to make themselves aware of their obligations so that they may assure themselves of their footing should the country suffer inclement weather conditions in future.

In essence, the employer should take the following into consideration when seeking to establish the extent of an employer’s obligations to their employees during disruptive weather conditions.

• Where the employee is unable to attend for work due to disruptive weather in circumstances where the employer is still open for business;
• Where employees make themselves available for work but the employer is closed due to the disruptive weather;
• Health and safety considerations;
• Temporary lay off and short time working?

Where the Employee is Unable to Attend for Work

A persistent problem for employers throughout the recent wintry weather was high levels of absenteeism in the workplace. A common example of this would be where employees were unable to make the commute to the workplace due to impassable roads and icy conditions. What are the employer’s rights and obligations in this situation? Where an employer keeps the workplace open but the employee decides not to attend for work, arrives late, or leaves early then 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 unpaid leave or as part of their annual leave entitlement.

Where Employees Make Themselves Available for Work

Another persistent problem for employers as a result of weather conditions arises where the employer is unable to open the workplace due to the poor weather conditions. This has commonly occurred where the water-pipes at the workplace have frozen or burst and has also had quite an effect 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 the hard trek, only to find that workplace is closed then the employer would generally be required to compensate the employee. The basic reasoning here is that the employer has undertaken an obligation to provide work for an employee during specified working hours. Where an employer is unable provide such work then they are breaching the terms of the employment contract and the employees ought to be compensated for time out of work. This also applies where the employer decides to close the premises early or send the employees home. It may be worth consulting with the employee 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 which will be discussed in more detail below.

Health & Safety Considerations

It is important to note that some employees may argue that on the grounds of health and safety that it was simply impractical and dangerous for them to make the commute to work. On this ground there may then be an argument that it would be entirely unfair and unreasonable for an employer to require the employee to take any resulting time-off as unpaid leave. Obviously, a certain amount of common sense should be exercised in such situations and the employer should take into account the nature of the commute. For example if an employee lives around the corner from the workplace then employer is reasonably entitled to expect the employee to attend for work. However, if the employee lives 50 miles away then the employer may have to concede that the trek is just too risky. Where valid health and safety situations arise then the employer may agree with the employee that he takes the day as part of their annual leave or that they work the time back at a later stage. Both the employer and employee should assess the situation as it arises and take into account all circumstances. Consider if it is less risky to allow the employee to come into work for a later shift and leave for home earlier than normal? Agree with the employee to attempt to make the trek but if the risk posed along the way is too much then the employee should turn back. Can the employee work from home or even fulfil some of their 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 which allows for temporary lay off or short time working in circumstances where there is a temporary shortage of work. In circumstances where there is inclement weather the employer may activate this provision and apply lay off or short time working until such time that the weather improves. This again highlights the importance of issuing employees with carefully worded and thorough employment contracts and handbooks in the long term.

In conclusion it is important for employers to identify their obligations to their employees before taking any action. In light of the above, if an employer believes they are not obliged to compensate the employee for days out of work then they should meet with the employee to seek to arrange a mutually agreeable solution.

If you are unsure of your obligations towards employees over recent weeks due to weather conditions, contact the 24 Hour Advice Service on 0844 892 2772 and one of our experienced advisors will be happy to assist you. Alternatively, if you’re a client in Northern Ireland please call 0844 892 2786.

Suggested Resources