As temperatures plummet and snow threatens, employers must be prepared for the inevitable impact travel disruption may have on their workforce and their businesses. 

This briefing note examines the key issues for employers, their legal obligations, and the steps they can take to minimize disruption. 

Can employers dock pay if employees don’t come to work? 

Employees are entitled to a day’s pay for a day’s work.  This means that theoretically at least, employers can withhold pay if staff fail to come to work and their absence is unauthorized.

However, if an employer has habitually continued to pay staff during snow absences or exercised its discretion to do so, this may give staff a contractual right to pay in these circumstances.  This means that any change to that policy may constitute an unlawful deduction of wages unless there is an express contractual right to make such deductions. 

Even where the employer has the contractual right to deduct pay, this right must be considered within the wider context of the employer’s duty of care towards their employees.  If staff feel pressured to travel to work in treacherous conditions because they cannot afford to lose their salary, this may compromise their health and safety.  If they suffer personal injury as a result, employers could be liable for that injury.  

Employers should also consider the negative impact not paying staff may have on employee relations, such as poor morale, lack of goodwill, low productivity, reputational damage, or abuse of sick leave provisions.  However, this also needs to be balanced against the resentment felt by those who make every effort to attend work. 

The best approach is to encourage staff to make all reasonable efforts to come to work but not to take any undue risks.  Where employers want to make deductions from salary, contracts should be clear about the circumstances in which they will do so. 

What about school closures? 

In many cases, it is school closures rather than travel difficulties that can prevent staff from coming to work on snowy days. 

In emergency situations, employees are entitled to take unpaid time off to care for their dependents.  School closure is likely to be classified as an emergency situation.

Please note, however, that this right is only to a reasonable amount of time off where necessary.  It is designed to give employees an opportunity to put alternative care arrangements in place.  It is not designed to cover circumstances where the employee’s poor planning has left them without childcare.  

Under these circumstances, leave of no more than a day or two is considered reasonable.  Whilst employees are protected from any detriment associated with taking emergency leave, if the leave required is likely to last for more than a few days, employers could insist that any remaining days are taken out of the employee’s holiday entitlement.  Although the employer will then be paying the employee for their absence, a corresponding reduction in overall holiday may encourage a faster return to work. 

What happens if the workplace is shut?

The general rule is that employers must pay the wages of staff who are available for work, even if no work is provided.  Consequently, if adverse weather means that a workplace has to be shut for a period, employees are still entitled to be paid their normal salary.  This is the case unless the failure to provide work is completely outside the control of the employer.  However, for this exception to apply, the ability to provide work must be impossible, not merely inconvenient; legal advice should be sought before relying on it. 

Mobile workers

Many employers have a mobile workforce (e.g sales staff), who do not have a fixed or habitual place of work, and who spend their days travelling from one client to another. 

Employers should be mindful of the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another.  Here, the ECJ found that for these types of workers time spent travelling each day between their homes and the premises of their first and last customers is "working time" for the purposes of the Working Time Directive. 

Adverse weather conditions can significantly increase the amount of time a worker spends travelling at the beginning and end of the day.  Employers must be careful, therefore, to ensure that when planning travel rotas/patterns, they do not fall foul of the Working Time Regulations.  Whilst, it is unlikely the 48-hour working week limit will be contravened in these circumstances, the rest break provisions may well be.  Employers should ensure that planned travel assignments for the next day take account of these provisions. 

Action for Employers

Consider ways in which the impact of poor weather can be mitigated.  Many employers already operate remote-working arrangements following the pandemic.  For those who re-introduced full-time office working, consider whether a temporary remote-working arrangement can be implemented once again to reduce operational disruption.

• Review contracts to ensure they are clear as to what amounts to unauthorised absence and when deductions from salary will be made.

• Be prepared to amend working patterns and rotas at short notice.  Consider who might be available to cover. 

• Consider relaxing dress codes and permitting (electrically compliant) portable heaters.

• Put in place an Adverse Weather and Travel Disruption Policy to set out the company’s position on payment for absence, use of holiday and notification procedures etc. 

If you would like further help and advice with any of these issues, please contact Prettys Employment Team on 01473 232121 or by filling in our contact us form and one of our team will be in contact with you at the earliest opportunity.