Should employees still be paid if exceptional circumstances prevent them from getting to work? Nicola Sullivan looks at the factors to consider
Strike action that disrupts public transport, adverse weather conditions, or being stranded abroad because of a delayed flight can all make it impossible for an employee to get to work. This was demonstrated last month when heavy snowfall in some areas made it difficult for many staff to make it into work, and prompted employers to take various approaches to manage unavoidable absences.
Sainsbury’s said it would not pay workers who could not get into work because of the snow, while Tesco allowed decisions to be made at a local level. In some cases, Tesco staff were also given the opportunity to work at a store closer to them or swap shifts with colleagues. Marks and Spencer left it up to individual managers to decide whether missing staff should be paid.
Onus on employees
Legally, employees are obliged to attend work unless they are sick, on holiday or on maternity leave, which puts the onus on them to ensure they are present. If the workplace is open but employees cannot get there, employers can treat their absence as unauthorised, so are under no obligation to pay them. This applies to all absences not related to sickness. Employers can either advise staff to take time off work unpaid or make up the time at a later date. Alternatively, employees can ask to take the time off as paid annual leave, but their employer cannot force them to take this option.
Tom Flanagan, employment partner at law firm Pinsent Masons, said: “If the employee does not come to work for a reason that is neither reasonable nor authorised by the employer, then the employer does not have to pay. But employers need to be pragmatic about this and reasonable, particularly when it is extremely apparent that people just cannot come in.
“If someone cannot get in to work, they have to call in to the line manager. In that conversation, unless the employer says to the employee something like ‘I am not interested, you must come in now’, then that [phone call] authorises the absence.”
Unauthorised deduction of wages
Employers should be aware that employees have statutory protection against an unauthorised deduction of wages without their consent and few contracts state that employees who cannot make it into work because of the weather or some other situation outside their control will lose a day’s pay. A deduction in pay could be challenged as unlawful, especially if the employer has to shut its premises because of bad weather conditions.
Such situations could also impact on an organisation’s payroll operations, according to the Institute of Payroll Professionals (IPP). As well as managing its own staff shortages, payroll must be aware of the contractual obligations to pay absent employees. Elaine Gibson, senior policy officer at the IPP, said: “An effective way of minimising the cost to the business is to ensure employees have the ability to check their work emails and log into the company’s IT system remotely.”
Flexible working policies can help some employers overcome unexpected situations that make it difficult for staff to travel into work. Ghislaine Caulat, business director at Ashridge Consulting, said: “For organisations that have embraced new technologies over the years and where working virtually is nothing new, the recent snow was no big deal. There is no doubt offering employees this degree of flexibility not only removes unnecessary stress, but has the positive impact of making staff feel energised and dedicated to work.”