Member companies should consider the following advice in deciding whether or not to pay employees who were absent during the adverse weather over the period 28 February – 2 March 2018.
Policy: Firstly, if the company has a policy in relation to adverse weather and pay, then the company should follow that policy. Also, consider any custom and practice – how has the company dealt with these issues in the past?
Legal Position: If you do not have a policy the legal position is that, to retain an entitlement to pay, employees must be ready, willing and able to work. However, employers must also act reasonably in deciding whether to pay employees or not, and employees have legal protection against unlawful deductions from wages.
Companies need to look at any instructions they issued to employees. If the company issued an instruction that they were closed after a certain point in time or closed on a particular day, then that amounts to an instruction to employees not to come to work or to go home and employees are entitled to pay for the full day. There would be no evidence in that situation that employees were not ready, willing and able to work. Similar principles apply if employees were told only to travel to work if it was safe to do so and advise that it is not safe for them to do so – if, for example, there was a red weather warning in place. Again, in that situation the employee would require to be paid.
Another factor to be considered is emergency time off for dependants for any employees who have children, who were unable to attend school or nursery due to the weather. Those employees have a statutory right to time off albeit it is unpaid time off. However, there should still be a discussion with the employee – they may say that irrespective of childcare issues, they would have been unable to travel anyway.
If employees have opted in the absence of an instruction to remain off work, then on the face of it they are not entitled to be paid, as they were not ready, willing and able to attend work. However, as indicated above, employers should act reasonably and discuss what the options are with employees.
These options would include taking annual leave, unpaid authorised absence, including emergency time off for dependants, if applicable, or making the time up which could happen either at work or at home (if practicable) over a reasonable period. Employers should be clear that it is not going to be regarded as a disciplinary matter and will not be counted as poor attendance for disciplinary or any other purpose. If employees work up the time during time normally paid at overtime, they should work up the time at the overtime rates, not basic rates.
Future: If you do not have a policy, you may wish to consider introducing a policy to avoid confusion in future over adverse weather events. If so, please contact us and a sample policy can be supplied.
If you have any other questions, then please contact your usual adviser at Scottish Engineering.