Employment issues and inclement weather

Storm Ophelia is coming and all schools in NI will be closed today.  What about other employers? Some employees cannot get to work, or choose not to try, some employers may prefer employees to not attend work, others face a downturn in business because their customers won't go out unless they have to etc.

Given the topicality, we thought it was worth emphasising the employment law situation. So, how might the stormy weather (and further inclement weather this winter) impact on employment in relation to employers closing early or employees being unable to attend work?

Who makes the decisions?

To a large extent the rights of employees affected by events depend on who decides what the response is to the weather. So, if an employer decides to close early or send people home they will (generally) have to compensate employees. If the workplace is open but the employees leave early without permission or do not attend work at all there will generally be no need for the employer to pay for the absence.

Short term/Early Closure

Some employment contracts allow employers to put employees on short-time working when an event (including inclement weather) outside the employer’s control impacts on work. For those employers, it is likely to be permissible to send people home without having to compensate for the reduced hours of work. For employers without such a clause in the employment contracts a decision to send employees home would amount to a breach of contractual terms. Full pay for the lost hours would be due. Failure to pay could lead to successful unlawful deduction from wages claims from employees.

Lay off/Guarantee Payments

Where the lost time amounts to more than a day it becomes a “workless day” and payment becomes due under Part V of the Employment Rights (NI) Order 1996. The maximum amount of a day’s guarantee payment is currently £25.90 and most employees will be entitled to 5 days' payment (provided they normally work a 5 day week) in a rolling three month period. However, as with short time, an employer must have a contractual right to lay-off employees or a full day’s pay for each workless day will be due to the employee because of the employer’s breach of contract/unlawful deduction from wages. See here for more information on guarantee payments:
https://www.nibusinessinfo.co.uk/content/guarantee-pay-entitlement

Other arrangements

It might well suit both the employer and employees to close early or reduce hours. For instance, there is nothing unusual or unlawful in both parties agreeing that time will be made up at a later time or agreeing a contractual payment somewhere between a guarantee payment a full day’s pay. Some employers will already have flexible working arrangements in place and might reduce ‘core time’ to allow for early closure or may allow employees to make up “flexi-time” at a later date. Agreements might be in place to allow a credit to be given to employees. Others might arrange to work from home or re-arrange shifts without any impact on pay. Broadband provision has improved in recent years and many employees could usefully work from home.

Employees who cannot get to work

There will be some employees who, because of where they live or the location of the employer’s premises, cannot get to work. Employers will generally have no obligation to compensate employees, provided the workplace is open and work is available. Nonetheless, some employers could agree to treat the absence as annual leave or agree that employees could make up the time at a later date. Provided these arrangements do not infringe the Working Time Regulations there shouldn’t be any problems for employers, given the fact that flexibility avoids loss of wages for the employees.

One of the biggest problems will be faced by working parents and their employers. With all schools closed, parents will have to make alternative childcare arrangements. That might be difficult if normal carers can't get to the house or parents can't get to the carer's premises. The only option for the working parent might be to stay at home with the child under time off for dependents rules (similar rights apply to those with adult dependents, where external carers might not be available). Employees do not have a statutory right to be paid when taking time off for dependents but it will be difficult to limit the amount of time off when travel is difficult or impossible. 

Employers faced with staffing difficulties due to the severe weather conditions may wish to contact their solicitor or call the Labour Relations Agency on 028 90 321 442.