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25th January 2013

Employee Pay and Adverse Weather

As many of us have experienced over the past few weeks, extreme weather during the winter months can result in major travel disruptions and it is recommended that employers have a strategy in place to ensure necessary business continuity.

There are occasions however, when employees simply cannot make it in to work. In such situations employers should be mindful of providing alternative workplaces or allowing staff to work at home.  It is essential to maintain contact with your staff.  It is also advisable to have a policy in place to provide clarity to employees should they be unable to attend work due to inclement weather.  If you require any assistance in preparing such a policy please contact your Lighthouse Employment Law advisor for further advice.

But must employers pay employees who cannot make it in to work?

The law unfortunately lacks certainty on this point and the key issue to establish is whether there is a contractual right to pay the employee.  The starting point of which is that wages are only payable if the employee has provided contractual consideration.

Consideration is manifest in either the actual performance of the work or where the employee is shown to be ready and willing to work.  Most salaried employees would seemingly fall within the second category as they receive remuneration even if they are not in work. It therefore should follow that if you are not in work, you cannot be ready to work and as such should not be entitled to pay.

Upon examination of the limited case law however, the position does not appear that simple.

Whilst no general presumption can be formulated that wages are not to be paid if an employee is unable to attend work, there is no rule to the contrary that given an unavoidable absence the employee remains entitled to their pay.  Indeed, in the case of Marrison v Bell (1939), it was held that, provided an employee’s failure to attend work was involuntary and unavoidable, then they may still be entitled to their wages.

With the apparent lack of clarity in this area, the court or tribunal will have to appreciate individual circumstances of the employee and perhaps consider whether there is a custom or practice within the business or industry which provides guidance as to how the situation has been dealt with previously.  Of course, from a business perspective it may be beneficial to pay employees, to avoid any potential bad publicity or to simply maintain favourable relationships with employees.

It is recommended that employers consider providing alternative working arrangements during times of adverse weather, to minimise the resulting disruption and avoid any conflicts.  If an employer wishes to deduct wages when an employee fails to turn up for work, then given some of the legal uncertainties highlighted above, it would be advisable to not only provide for the same in the contract of employment, but also to implement a clear, formal and publicised policy.  Without this, an employer would create a significant risk of a breach of contract and/or unlawful deduction from wages claim being made against it by its employees.

The principle concern should be to maintain employee relations and in doing so, any approach of the employer must be consistent.  If you require any specific advice in relation to this particular issue you should contact your Lighthouse Employment Law advisor – and in such circumstances we would strongly recommend that you do this before taking any action which may result in deductions being made to wages.

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