Ask the expert: Winter is coming

Q WITH the winter months approaching, we are looking to make changes to our absence policy so that employees who fail to make it into work due to adverse weather do not get paid.

Last year, while the rest of our team managed to attend work during periods of snow and bad weather, there was one member of staff who repeatedly failed to make it in and, as a result, there was tension and resentment within the rest of the team who had to deal with the extra workload.

Are we allowed to implement these changes?

A There is no legal obligation to pay staff if they cannot attend work due to extreme weather conditions. However, the practice may have contractual obligations or custom and practice arrangements in place from previous years.

It is important that the practice considers how it will handle such situations so that a policy can be publicised before any likely period of disruption and to ensure all employees are fully aware of any changes.

Practices can be prepared by establishing a ‘bad weather’ policy or amending their absence policy. There can often be uncertainty and a difference of opinion between employers and employees on their rights if they are unable to attend work due to weather and transport difficulties. It is therefore important you have a clear approach and be consistent in application.

A bad weather policy may consider the following options for inclusion:

  • Employees receive a set payment - for example, one day’s full pay only
  • Employees are asked to make the time up at a later date
  • Introduction of flexible working such as late starts or early finishes
  • Employees are given the option to use holidays
  • The time taken is unpaid
  • The employee can work from home, if possible

The policy should be clearly communicated to all employees and applied consistently.

You may decide to make a discretionary payment, although this may be difficult for the practice to do consistently and fairly across all employees.

Employees also have a statutory right protecting them against unlawful wage deductions. So, if the practice does not have the contractual right to deduct pay and the employee does not consent to the deduction, a complaint could be raised.

So what do you do if you suspect an employee is taking advantage of the situation? In such circumstances, it may be possible to take disciplinary action against those employees who you feel are able to make it into work but are still absent. However, each situation needs to be investigated by following the correct disciplinary procedures.

One further option is to ask employees to take annual leave for these periods of absence and explain that if further days off are required, then these too will be deducted from their annual leave entitlement.

However, the practice could not insist that holiday is taken unless the requisite notice is given. The notice required should specify the day or days on which the leave is to be taken and must be double the period of the required holiday. For example, for two days annual leave, then four days advanced notice would be required.

There does need to be some flexibility in these situations and practices need to consider health and safety obligations and their duty of care to employees. For example, if there is a Met Office warning advising only essential travel, it is probably not reasonable to be encouraging employees to try and come to work.