Burnetts' Employment law solicitor Hazel Phillips discusses common concerns employers have in relation to the winter weather.
As the weather finally starts to take a turn for the worse (or the better for those of us wanting a white Christmas!), employers start to raise seasonal concerns with us. The most common are weather issues, holiday requests and sickness absence.
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.
Keeping the workplace at a comfortable temperature can be difficult at this time of year.
Although there are no laws setting a minimum temperature, in their Approved Code of Practice, the Heath and Safety Executive states that working temperatures should be at least 16°C if the work is deskbound and at least 13°C if the work is physical. If the temperature falls below these levels, workers are entitled to leave the workplace due to health and safety risks.
If a worker is working outside then the rules are different - there is no minimum temperature but all outdoor workstations should, ‘so far as reasonably practicable, be protected from adverse weather.’
Staff illness often increases during the winter. Employers are entitled to set a minimum level of expected attendance and to treat a failure to meet that minimum as a disciplinary matter even in cases where there is no doubt as to the genuine nature of the absences. However, caution is required when considering disciplinary action, particularly if the cause of the absence is a condition which could be classed as a disability under the Equality Act 2010.
Employers should also remember that, depending on the contractual terms which have been imposed, employees can generally self certify for the first seven days of any bout of illness. Employees should definitely be asked to complete that self-certification process (a free self-certification form is available from http://www.hmrc.gov.uk/forms/sc2.pdf) and, if there is capacity, should be asked to attend a return to work interview (even if the period of absence is as short as a day) so that the reason for the absence can be recorded and any patterns of absence can be identified.
As long as there is a written contract of employment in place explaining what the rules are on when and how much holiday can be taken, employers should remember that they can control this aspect of the working relationship.
Most employees are entitled to 5.6 times their normal working week as paid leave in any holiday year. However, as long as the employee has been given the opportunity to take that full entitlement during the year, the employer can control when exactly the leave is taken. This rule applies to the extent that there is no legal right to time off on bank holidays, including Christmas Day and New Years’ Day. Getting time off on those days is at the gift of the employer.
Employers can also control how much time can be taken at once and how many people can be off at any one time. As long as the rules imposed are applied consistently and without discrimination, there is very little that an employee who is refused annual leave can do.
If holiday entitlements and, in particular, the “new” rules on calculating holiday pay are of interest watch out for our session on this topic early in the New Year.
Seasons Greetings and Winter Fun (not worries) from all the employment team at Burnetts.
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Published: Monday 15th December 2014