Employment

The ‘Beast from the East’ in 2018 brought relentless snow, red weather warnings and public transport shut downs.

With the aim of giving employers some guidance, the Scottish Government has published a Fair Work Charter for Severe Weather. Although the Charter itself if not mandatory and much of it simply highlights ‘best practice’, some of its recommendations reflect your mandatory health and safety obligations.

So where do employers actually stand?

Health and safety

Clearly, you have a duty, so far as is reasonably practicable, to ensure the health and safety of your employees. Think about, for example:

  • Is it safe to open the workplace?
  • Are there risks to employees in carrying out their work, or travelling to and from work? Is there any increased risk to workers with disabilities, or who are pregnant?
  • Don’t encourage employees to travel in dangerous weather.
  • If the weather deteriorates significantly during the working day, consider allowing employees to leave early to ensure they get home safely.

Do we have to pay employees if they can’t get to work?

It depends. There is a widespread view that employees are not entitled to be paid if they cannot get to work due to adverse weather. However, the law is not actually clear.

There are certain situations in which it is likely you will need to pay, such as where employees are stranded on business trips, or you close the workplace.

It is unlikely, but there might be a contractual right to pay in some circumstances – is there an express term in contracts, a collective agreement, a contractual policy, or a ‘custom and practice’ of paying?

Otherwise, you can opt to pay as normal, pay for a limited number of days, or not pay at all – it’s a good idea to clarify your position in a policy. If you don’t pay, there are some risks:

  • The law is not clear, so there is a small risk of an employment tribunal claim.
  • You may be encouraging employees to take excessive risks with their safety to get to work – the Charter specifically warns against this.
  • Negative publicity.
  • Negative impact on staff morale; although giving paid leave could cause resentment for those who made extra efforts to attend.
  • Employees may be tempted to call in sick (to get sick pay).

If you do pay, avoid setting a precedent for the future by making clear that it is a gesture of goodwill and decisions are made case-by-case.

Alternatives for employees who can’t get to work

For employees who can’t get to work, think about:

  • Is homeworking an option?
  • Would flexibility around start and finish times help?
  • Can they work from alternative sites?
  • If you don’t intend to pay for absences, you could ask if employees would prefer to use annual leave, time off in lieu or make up the hours.

Employees with caring responsibilities

Employees may be entitled to ‘time off for dependents’ if, for example, their child’s school closes unexpectedly, or their care arrangements for children or other dependants are disrupted. Workbox users can find full details of the circumstances in which this right applies at Time off for Dependants.

Planning for disruptions

The Charter recommends that all employers should have a severe weather policy. This makes sense: it can clarify your expectations of employees and your position on pay. Once in place, you can send annual reminders of your policy to staff. Brodies Workbox users can access our example Adverse Weather / Travel Disruption Policy.

Also think about your internal strategy, for example, where responsibility will lie for assessing health and safety, how you will operate in challenging conditions, and how you will communicate with staff and customers.

If you need to discuss your approach to adverse weather or if you have a particular case you would like advice on, please speak to your usual Brodies contact.

Nicola Boardley

Nicola Boardley

Solicitor at Brodies LLP
Nicola is a Solicitor in the Employment team with experience across a range of employment issues including disciplinary matters, unfair dismissal, breach of contract and discrimination.
Nicola Boardley