February 19, 2014

After the deluge: wading through the floods of employment issues

The recent downpours have resulted in the flooding of many businesses. At the same time, employees are struggling to get into work due to their own homes being flooded or the closure of transport links. The problems which arise due to the closure of the workplace are rather different from the challenges of dealing with employees who can’t get to work, but both should be handled carefully. Where the business itself has closed due to adverse weather an employer can ask its employees to work from home or, if alternative premises are available employees may be asked to transfer to the different premises until their place of work is restored. Where the employer has an express clause in the contracts of employment entitling it to make such requests, the employer can insist on the employee’s co-operation.

Alternatively, the employer may be able to argue an implied right to temporarily transfer employees in exceptional circumstances provided the right is exercised reasonably.

Another option would be to give employees the choice of taking holiday. Unless there is a contractual entitlement allowing the employer to withhold pay, then any attempt not to pay employees who are ready and willing to work will amount to an unlawful deductions from wages.

What if the business is open but the employee says they cannot get to work?

The first thing to establish is whether any alternative is possible such as taking holiday or working at another site.

If an employee cannot get to work due to childcare issues they will be entitled to take dependants leave, designed to deal with emergency situations while the employee makes alternative arrangements. Such leave is usually unpaid unless the contract provides otherwise.

Employers should be mindful of their obligation to protect the health and safety of employees and so employees should not be forced to come into work where doing so could put their safety at risk. However if the employer doubts the sincerity of an employee’s assertion that they are unable to get to work due to the flooding, the employee could be subject to disciplinary action. It is important to “keep an open mind” and ensure that any suspicion is investigated thoroughly; an employer would be expected to have substantive evidence and anything short of this could amount to a breach of the implied duty of trust and confidence.

There are a series of action points which should be followed, these are:

Check contracts to see if there is an express right to withhold pay where employees are unable to work due to adverse weather conditions.
Check if there is an adverse weather policy and is so, does it need updating? Provide employees with a copy of the policy.
Remind employees of their responsibility to try to get to work and their options in the event of being prevented from working due to flooding.
Remind employees that a failure to make reasonable attempts to attend work could result in disciplinary action.
Remind employees that they are required to follow the absence reporting procedure in the event that they are unable to get to work.
Where employees are prevented from working, discuss how their leave will be recorded and whether they will be paid for the leave.

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Jayne Flint is a Solicitor at law firm Shoosmiths.