Employment matters - flood advice
In light of the recent flooding in Cumbria, employment law solicitor Natalie Ruane looks at common queries relating to employment during bad weather conditions.
What happens when an employee can’t get to work because of the weather?
The best advice that we can give is to try to be sympathetic but, as the employer suddenly left without the required level of staffing, that can be very difficult.
Having said that, employers should be wary about forcing employees to come in to work during hazardous winter conditions. Instead, employers need to first consider whether the explanation given is reasonable and whether the employee has made a reasonable effort to attend work. If not, employers can withhold pay but should never do so without first taking legal advice.
Wherever possible it is best to consider some form of compromise and to think about what, if anything, the employee can do from home so that the employer gets something done even if it is not would have been achieved if the employee had been able to come into work.
Sometimes the issue is not that the employee can’t get to work but that the employee has childcare problems caused by School closures. What can the employer do then?
Employees have the right to take a "reasonable" amount of unpaid time off work to take "necessary" action to deal with particular situations affecting their dependants. Importantly, this specifically includes taking time off to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant (such as a child) or to deal with an unexpected incident which involves the employee's child during school (or another educational establishment's) hours.
That means that if school is closed, and an employee can’t make alternative arrangements, the employee is entitled to take time off. The employee can have as much time off as is reasonable in the circumstances which can be difficult. Particularly if the employee and the employer disagree over what is reasonable. However, the key point is that the legal right is to unpaid leave. There is no right to paid leave if a school is shut.
Some employers are more generous and provide an element of paid leave in these circumstances but there is no need to do so or to pay indefinitely. The best advice is to try to communicate with the employee as fully as possible and to try to agree something between you that will work for both parties.
What happens when conditions make it impossible for an employee to do their normal job but there is something else (such as cleaning up flood water) that the employer would like the employee to do?
The simple answer is to ask politely. In most cases, employees will understand and will be willing to assist.
If an employee refuses, look at their contract. What does it same about duties? Is there something in the contract about duties being flexible or subject to change depending on business need. If there is then you might be able to get tough but take legal advice before doing any thing drastic.
What happens when the employee wants to come in but the employer isn’t able to open?
If the business can afford to pay staff during a period of closure then that is the best option but, if there is no timescale for when the business might be able to reopen, that may not be practical.
One alternative is to ask staff to use their holidays during this period. Employers have the right to ask employees to take holiday on set dates but the law says that the employee must be given notice and that the notice must be at least twice the length of the period of leave that the employee is being asked to take. So if the employer wants the employee to take two weeks' leave, the employer must give the employee at least four weeks' notice.
For an emergency shut down, such as in the case of a flood, it won’t be possible to give such notice but hopefully most employees will be sympathetic.
Another alternative would be to consider a lay off.
A lay off should still be paid unless the employer has expressly said in the employment contract that lay off might be without pay.
If an employer lays off an employee without pay in the absence of an express right to do so, the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal ( http://www.practicallaw.com/8-200-3106) .
Even if an employer has a contractual right to lay off, this is only a short term solution because employees can only be laid off for “a reasonable period”. This is generally understood to be four weeks. Thereafter, unless the employer can show that there is a realistic possibility of a return to work within a short period, the employee will be entitled to ask to be made redundant and will be entitled to statutory redundancy pay.
All of these issues are complex and difficult. Communicating openly and honestly with staff is the best place to start but if you can’t reach an agreement on the way forward, it is always best to take advice. Natalie Ruane and the Employment Team at Burnetts will be happy to help. Please contact them on 01228 55 22 22.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Wednesday 16th December 2015