Adverse Weather and Employee Travel Disruption

This business briefing highlights some practical steps that a business can take to reduce the risk of adverse weather affecting an employee’s travel to work. There are many reasons why employees may be delayed or prevented from getting to work by major disruptions. The main examples are:

• Weather: Extreme adverse weather conditions can either cause acute but short term disruption (high wind, very heavy rain/flooding, snow showers etc.) or longer term delays (usually heavy snow and ice) which can cause road closures and/or affect public transport services;
• Strikes: Industrial action on public transport networks such as trains, buses and tubes;
• Flight cancellations or delays: Employees can be delayed when returning from holiday or business trips. More significant problems occur when airline industry strikes or other major incidents, such as terrorism, cause widespread delays lasting days or sometimes even weeks.

If an employee is late for work? If the lateness is outside the employee’s reasonable control it will probably complete mitigation for any breach of the usual rules on timekeeping, hours of work etc.  That is not to say that when poor weather or strike action is forecast (etc.) employers cannot reasonably ask staff to make contingency plans and/or leave extra time for their journeys.  Application of common sense will usually reveal the correct outcome.

What if an employee cannot get to work? Can they work from home? If disruption is forecast employers and staff can plan ahead by taking work home if possible. Remember to keep personal data secure in accordance with GDPR (but GDPR would not prohibit most files, documents etc. being taken home by an employee). Can staff work at different sites? It will usually be reasonable to ask staff to work temporarily at a suitable alternative location in these situations. The alternative location might even be in the offices of clients or suppliers with whom your business has close links.  Remember rules about data security, confidential information and be mindful (and respectful) of local rules and policies. However, sometimes it will not be economical or even safe for a workplace to remain open.

Any employees with contractually guaranteed hours or who is paid a salary will still have to be paid if they cannot come to work when they are otherwise ready and willing to work, unless the business can rely on contractual terms such as a lay-off clause.

Paid annual leave: Time away from the place of work could be taken as paid holiday (assuming it has accrued) but is probably only appropriate to require the time to be taken as such if the absence arises from some action of the employee, for example because they missed a flight or they are stranded on holiday (even if that is something that is out of their control).

Time off for dependants: Employees have a right to take a “reasonable” amount of time off because of the unexpected disruption or termination of a dependant’s care arrangements. Bad weather or other disruption might lead to a school or nursery being closed with the result that an employee has to take the day off to look after children in any case. In these circumstances, a business cannot force the employee to use up their paid annual leave entitlement and must not subject the employee to any detriment as a result of exercising this right. There is no right for an employee to be paid for time off for dependants, however consider internal policies and contractual arrangements.

Making up the hours: In some cases it may be appropriate to ask employees to make up the lost hours on other days. If the business operates a flexi-time scheme or an annualised hours scheme, the terms of the scheme may already allow this sort of solution. Even where there is no such scheme, the business could reach an agreement with its employees over the lost hours.

Time-limited paid leave: While a business may baulk at the idea of giving unlimited paid leave to stranded employees, an alternative is to give limited paid leave, after which employees must either take unpaid leave, make up the lost hours, or agree to count it against their paid annual leave entitlement. For example, the business may limit paid leave to one or two consecutive days’ absence, or (for instance) three days in any year.

Practical steps to help reduce business risk

• Develop a business continuity plan by analysing the potential risks to the business (and the likely effects) and formulate a strategy to combat them. Plan for worst-case scenarios and the plan should work for more minor disruptions
• Given the potential for legal uncertainty, consider including a clause in employment contracts to authorise deductions from wages in certain situations
• Implement a policy setting out how the business will deal with adverse weather and other major travel disruptions
• Publicise the policy internally before any likely period of travel disruption and ensure that all staff and managers are aware of their responsibilities
• Decide whether employees will be paid if they cannot make it to work and ensure any guidance is applied consistently
• Consider the employee relations angle. Deducting pay may harm morale, but paying absent employees could also lead to resentment from those who make a greater effort, unless they feel their efforts have been recognised in some way
• Communicate, communicate, communicate and use common sense.

If you would like to discuss this or any other employment matter, please contact the TSP Employment team on 01206 574431 or email info@tsplegal.com

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at January 2019. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.