Snow Worries…!

How Employers can turn “Snow Worries” into “No Worries…”

Dundee is the British city most likely to have a white Christmas this year.  The odds of snow falling over the River Tay on Christmas Day are better than ever.  With that in mind, employers would be well advised to consider the repercussions of bad weather in the lead up to the festive season.

Absent employees – No dough

Employees are required to attend work even in extreme weather conditions.  If an employee is unable to attend work because of bad weather, an employer is generally entitled to treat the absence as unauthorised and is under no obligation to pay that employee.  Having said that, it is always preferable to make employees aware of any bad weather policy prior to the bad weather and best practice would be to have the policy clearly outlined in writing.  Employers would be well advised to consider creating bad weather policies to cover these scenarios.  Such policies should address how the employer will treat lateness due to bad weather and what will happen with regards to pay.

Closed workplace – No go

If an employer requires to close its premises at short notice due to extreme bad weather, in the absence of express written agreement the employer still requires to pay its employees their salary.  Even if there is no work available as a result of bad weather and office closure, it would be unlawful to withhold pay without the employees’ consent in writing.  Some employers have “lay-off” clauses in their staff contracts.  Such clauses can permit employers to lay-off employees without pay.  However these clauses can be relatively complicated and an employer should take legal advice about such a clause before attempting to operate it.

Untruthful employees – No Snow

Occasionally employees will exaggerate the extent of the bad weather in their locality and might suggest that the snowfall is heavier than it is, in an attempt to enjoy an extra duvet day.  If an employer discovers that an employee has lied about the weather in an attempt to avoid attending work, the employer would be entitled to take disciplinary action against that employee on the basis of misconduct.  Before taking such action however, the employer would still require to conduct a full investigation and then reach a fair decision regarding the appropriate disciplinary sanction based on its reasonable belief.

School closures – No show

Whilst there is statutory protection for employees who require to take emergency leave as a result of childcare arrangements, school closures do not generally fall within this category.  Emergency leave is available when there is an “unexpected disruption to childcare” and, unless there are specific applicable circumstances, this does not expressly include a school closure.  Having said that, employers should try to be as flexible as possible with employees who are unable to attend work due to school closures.  Employers might want to encourage employees to work from home on such occasions.  Alternatively employers might want to permit employees to make up the time at a later date.  It would however be important for an employer to adopt a consistent approach when dealing with such situations.

Ultimately the handling of bad weather procedures is an opportunity for employers to enhance staff morale and productivity in the workplace by considering solutions to the climatic conditions.  Experience demonstrates that employers who deal with these issues in a fair manner have a happier, healthier workforce.  ‘Tis still the season to be merry!

Simon Allison
Partner – Employment Law

4 Festive Questions Which Require to be Answered by an Employer TODAY…

1) Have you decided who will be on annual leave over the festive season?

Since Christmas Day falls on a Wednesday this year, it seems likely that most businesses will be open for some days over the festive season.  Does your company have clear, written procedures for booking and refusing annual leave requests?  Do you require your workforce to give you a period of notice for these holiday requests?  Employers require to deal with any such requests fairly and consistently in order to avoid potential discrimination.  It would potentially be discriminatory to give annual leave priority to employees with family commitments over the festive season.   Employers who are required to deal with multiple holiday requests should put in place guidelines for determining such requests.  It might be that an employer chooses to operate a first come, first served system, a yearly rota system or a random selection.  These policies should avoid claims of discrimination.

2) Have you made arrangements for your Christmas party?

If you have not already made your arrangements for the office Christmas party, you will need to get your skates on.  Have you considered your food and drink offering?  If you are providing free drink, have you ensured that there are also non-alcoholic alternatives?  If you are providing food, have you catered for vegetarians and any workers who have religious preferences?  Again employers require to exercise caution so as to avoid falling foul of discrimination legislation.

Employers should remember that, even although your Christmas party may take place off site and outwith working hours, employers can still be vicariously liable for any harassment which takes place amongst employees at the office party.  This may be the case even when the employer does not know that such harassment has occurred until after the event.

An employer’s strongest defence to this type of claim would be to demonstrate that it took reasonable steps to protect its workforce against such harassment.   Prior to any Christmas party, employers require to strike a balance between ensuring that employees are aware of their responsibilities at any office party and ensuring that they spread the correct amount of Christmas cheer.

3) Does your statutory leave year end on 31 December?

If so, you should be encouraging staff to use their annual leave entitlement before the end of the leave year.  If you have employees who are absent from work due to ill health, you should take steps to consider their entitlement to carry holidays forward into the next leave year.  The European Court of Justice has established that employees continue to accrue their holidays whilst absent on sick leave.  Earlier this year, the Employment Appeal Tribunal confirmed that, where a worker has been unable to use annual leave due to sickness absence, their entitlement to carry forward annual leave is restricted to the four weeks’ basic leave, unless there is a “relevant agreement” stipulating differently.   Employers would be wise to revisit their employment contracts or handbooks so as to be clear as to the level of annual leave which can be carried forward over each leave year period.  If the employer intends for employees to be able to carry forward the full 28 days’ entitlement, the employment contract should specifically states this.  Likewise, if employers intend to permit workers to carry forward the minimum 20 day entitlement, this should be clearly spelt out in the employment contract.

4) Have you decided who is playing Santa at the office Christmas Party?

Actually that last question was a joke.  I still believe in Father Christmas and will be hanging out my stocking on Christmas Eve!

Simon Allison 
Partner – Employment Law