Kiera Lee, writes:


1. ‘O’ the weather outside is frightful!

The recent drop in temperatures (not to mention the floods on both sides of the border) is a reminder that employers need to prepare for the inclement weather and the impact it might have on their business. A survey by the Federation of Small Businesses following a cold spell at the end of 2010 showed that 1 in 7 of its members’ employees failed to make it to work for at least one day as a result of snow. Making sure employees know where they stand in these circumstances will hopefully avoid disputes.


2. Do I have to pay employees who don’t turn up?

The starting point is that there is no obligation to pay employees who are not able to make it to work due to adverse weather conditions. A deduction from wages will not be unlawful where the absence is unauthorised. Employers need to make sure if it intends to withhold payment for ‘snow days’ that the absence is not inadvertently authorised. Employees should be reminded that they are expected to adhere to absence reporting arrangements.

Employers also need to be sure of the exact reason for the absence. Bad weather can lead to school closures or a failure in other care services. Employees responsible for a dependent are entitled to time off in these circumstances under Article 85A of the Employment Rights (Northern Ireland) Order 1996 (as amended). Employers will need to check their policies and custom and practice in these circumstances. If employees are normally paid for these absences then failure to pay may amount to an unlawful deduction of wages. Employees may also claim that they have been subjected to a detriment for exercising a statutory right.

When deciding which and when employees get paid an employer should ensure their policy is applied fairly. This involves something of a conundrum. The TUC have urged employers to be compassionate where employees cannot attend work through circumstances beyond their control but there is anecdotal evidence of resentment among employees who have struggled to get to work while others stay at home and get paid. Many employers feel payment is an incentive for employees not to make the effort to come in on snow days. A clear policy on who gets paid and when may alleviate some of the impact.


3. Business closures

Where a business cannot operate during bad weather conditions if employees are ready and willing to work they will still be entitled to payment. The exception to this is where an employer has a temporary lay-off clause in their contract or by operation of custom and practice which allows them to make no payment. The clause will need to be examined to make sure it covers adverse weather and for how long. It should also be read in conjunction with any guaranteed wages clauses.


4. Practical solutions

Some businesses may lend themselves to home working. Even if this is only a temporary arrangement employers should be aware of the potential risks involved. Some of the issues to be considered are data security and confidentiality and health and safety. Where there is an existing policy on home working employees should be reminded of it and, in the absence of any specific policy, employers should consider an assessment of the likely risks before implementing an agreement on home working.

Employers could also give employees the option of using annual leave instead of missing out on wages. Employers cannot insist on this at short notice. Under the Working Time Regulations employers must give notice requiring the employee to take leave. The notice must be at least twice the length of the intended leave period. For one day's leave this is 2 days' notice. This will not be a practical answer unless the employee agrees.

Communication will solve most problems but devising and distributing a bad weather policy should tackle problems before they arise. Any policy should be communicated to employees and agreed where necessary in good time before the employer wishes to rely on it.