Question
We operate in a remote region and in winter we often experience extreme weather. In previous years we have had issues with employees being unable to attend work for this reason. We would like to know what the law says in this regard, particularly in relation to payment, and whether there is anything that we can do to prepare.
Answer
Given the recent cold temperatures across the UK, this is an issue that many employers may face this winter. We explore the relevant law below, before setting out a number of options for employers to consider.
While this question has been raised in the context of poor winter weather, the response could apply equally to situations where employees have been prevented from coming to work for other reasons, such as strike action or where they have been stranded abroad due to flight cancellations. Indeed, some of you may have faced this issue back in 2010, when the eruption of an Icelandic volcano caused widespread travel disruption.
As it is here, often the main focus of this subject is entitlement to payment, and whether employers are able to deduct pay when employees haven’t been able to come to work. This question can be broken down into two other questions: is the employee entitled to be paid and, if so, can the employer make a deduction from wages?
Entitlement to pay may be more straightforward for hourly paid employees, who generally are entitled to be paid only for the work that they carry out. However, where an employee is salaried, the rules are less clear. Some are of the view that because the employee is not ‘ready and willing’ to work, there is no obligation on the employer to pay. However, there is case law in this area that suggests that the opposite may be true. As with so many things in law, the answer is likely to depend on individual circumstances.
Of course, if there is no entitlement to pay then there is no deduction if pay is not given. If there is a right to pay, then the general rule is that the employer is unable to make a deduction from wages. There are three broad exceptions to this: where the deduction is required by statute, where there is a contractual provision allowing deductions to be made, and where there has been prior agreement.
The first exception usually relates to deductions for income tax and national insurance, and is arguably irrelevant to this question. The third exception is potentially applicable, but it seems unlikely that employees will have been asked to give prior consent to a deduction from their wages specifically in relation to poor weather.
The second exception is arguably the most heavily relied upon, i.e. where the contract of employment gives the employer the right to make deductions. Some contracts will specify particular circumstances, such as repayment of loans or overpayment of wages, while others will use a more general ‘catch-all’ clause that is worded more vaguely. It may be possible to rely on the latter, but if absence due to poor weather is a potentially recurring issue it may be more sensible to list it as an example situation where deductions for non-attendance may be made.
If there is a contractual right in place, or prior agreement has been given, making the deduction from wages is likely to be less of a risk.
Having said that, there are other employee relations factors to consider as well as the legal parameters. For example, adopting a strict approach to this issue, particularly where employees are genuinely unable to attend work, is unlikely to do much for morale and may impact productivity. If this is a busy time of year, employers seeking flexibility from their employees may face a challenge if they don’t reciprocate in other areas.
It’s also worth remembering that we’re in the age of social media, where complaints become global within seconds, not to mention the potential press coverage of being seen to ‘stiff’ employees at Christmas time. If you rely on the public for business it may do you no good to get a reputation as being The Grinch of Great Britain.
With that in mind, the best option may be to offer employees a number of options. Employees could be told that they can take the time off as holiday (assuming they have entitlement left), or that they can work the time back. In some cases it may also be possible, if not safer, to allow them to work from home. Giving options before moving immediately to docking pay may prevent employees from feeling let down by their employer.
Our general advice in all cases is to make the rules clear before the problem presents itself. If you wish to apply certain rules to non-attendance due to poor weather (or strikes/travel problems), put in place a policy that tells employees what the options are, or what you will do in that event. That way, employees should be less able to argue that they’re surprised by the action that you take. As with all policies, it’s just as important to make employees aware of it as it is to create it, in advance of any issues arising.
In addition, take a look at your contracts to determine whether you could rely on them to make a deduction in these circumstances. If not, it might be worth a refresh to include the right to make deductions. If that could be tricky, you could also consider asking them to sign a separate document (such as a policy as outlined above) giving you the right to deduct. That way, you may be able to afford yourself some protection against claims for unlawful deductions, leaving you free to consider the more human aspects of the problem.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.