The 26th sitting of the United Nations Framework Convention on Climate Change (COP26) has arrived in Glasgow, taking place from 31st October to 12th November 2021. Up to 140 world leaders and 25,000 conference delegates are expected to attend.
There are significant road closures in place throughout Glasgow, starting from the 23rd October and lasting until 15th November, as well as expected protests which will cause travel disruption during the course of the event.
What should you do if you are an employer affected by staff not being able to make it into the workplace?
Do we need to pay employees if they can't make it into work?
This depends. There has been a widespread view that employees are not entitled to be paid if they cannot get to work due to travel disruption. However, the law is not actually clear. You should consider the following:
- Have you closed the workplace? If you opt to close the workplace, you will have to pay employees, unless there is a contract term that allows you to withhold pay (such as a lay-off clause). Consider whether any employees could work from home or from an alternative site, as described below.
- Do employees have a contractual right to be paid? It is unlikely, but there might be a contractual right to be paid for time spent away from work even if it is for a reason outwith the employee's control such as travel disruption. Is there an express term in the contract, a collective agreement, or a contractual policy (for example, in an adverse weather/travel disruption policy)? Or is there an implied ‘custom and practice’ of paying in these circumstances which employees could rely on? If employees have a contractual right to be paid in these circumstances, you should abide by this.
- Is there a non-contractual policy? If there is a non-contractual policy in place which provides for payment, it is good for employee relations to do so.
- None of the above: If none of the above apply, you can opt to pay as normal, pay for a limited number of days, or not pay at all. If you do pay when you’re not required to, avoid setting a precedent for the future by making it clear in writing that it is a gesture of goodwill and decisions are made case-by-case. If you decide not to pay, bear in mind that doing so could result in negative publicity and a detrimental impact on staff morale. Also, there is a small risk that an employee might challenge the non-payment in a tribunal.
Alternative options to consider
In the event employees cannot make it into the workplace, consider the alternative options. For example:
- Homeworking: Can employees work from home in the event of any travel disruption?
- Flexibility: Being flexible about start and finish times could allow more employees to come into work.
- Alternative work sites: Consider whether employees can work from other work sites. Does their contract allow you to move them to that site? If not, will they agree to this? If not, it may (in some circumstances) be reasonable for you to insist on this.
- Annual leave, time off in lieu, or making up the hours: If you do not intend to pay employees for absences, you could ask if they would prefer to use annual leave, time off in lieu (if you have such a scheme), or to make up the hours at another time. If an employee does not want to take annual leave, you can only force them to use their statutory annual leave if you are able to give them sufficient notice. Whether you can insist on them using any additional contractual annual leave (over and above their statutory annual leave) will depend on their contract.
General information on COP26
The Get Ready Glasgow website has useful information for businesses on things such as transport options and COVID-19 measures.
For more details on any of the issues raised in this blog, please get in touch with our Employment and Immigration team or your usual Brodies contact.
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