The Federation of Small Businesses in Wales estimates that the current cold spell is costing Wales around £25m in lost productivity each day.  As many as 6.4 million people will be off work due to the recent snowfall and icy conditions. How should you deal with employees who do not make it into work, who are late or who have left work early without permission?

Should you pay your employees?

You are not strictly obliged to pay your employees if they do not attend work due to the adverse weather conditions (unless their Contract of Employment actually states that they are entitled to salary under those circumstances). It is the employee’s responsibility to travel to work, even in severe weather conditions, unless you contractually provide transport for employees to and from work.

What are your options?

You should consider the following options:

1. Treat time off work as unpaid.

You should check whether your contracts of employment allow you to deduct pay in these circumstances, as otherwise it could be an unlawful deduction from wages. You should also inform employees of your intention to deduct pay before the deduction is made. However, your employees should not feel pressured to put their safety at risk by travelling to work if local authorities are strongly advising against travel. You will also need to weigh up whether this option is worth the potential negative impact on morale.

2. Require employees to make up lost time when they return to work.

This is the most common option. You should be keeping accurate records of time off due to weather conditions and you will need to ensure that appropriate working time rest breaks are maintained when your employees are making up lost time in the future.

3. Require employees to take holiday days.

If you decide that any days off will be deducted from an employee’s annual leave, you should communicate this to all staff.

4. Home-working.

If possible, this is an increasingly popular option, given the availability of remote working technologies. However you should consider the health and safety implications of home-working and whether or not your employees can be trusted to do so.

5. Treat the absence as unpaid dependants’ leave.

Employees have the right to unpaid time off to deal with emergency situations regarding their dependents, e.g. school closure. The right to this time off is usually for a short period of time to arrange more permanent arrangements, but with parents not being told whether schools are open or not until the morning you may need to be more flexible than normal with the amount of time off granted.

What else should I be doing?

In these temperatures you may need to monitor your workplace conditions, for example if employees who work indoors, are constantly saying that they are “freezing” or wearing outer coats inside. The Approved Code of Practice states that generally the minimum workplace temperature is 16 degrees Celsius.

Where work is being carried on outdoors, no minimum temperature is specified. However, you should carry out an effective risk assessment process. Measures that may be needed include provision of different personal protective equipment, providing mobile facilities for warming up and educating staff about the early symptoms of cold stress. In extreme circumstances, it may be necessary to shut the workplace. In this situation, payment should be made to employees.

What can I do if employees are taking "duvet days"?

You may think some employees are not even bothering to attempt the trip to work, but instead are taking a “snow day” just because there is at least a full inch of snow on the ground. Disciplinary action may be appropriate where you suspect employees are: taking advantage of the weather; or have failed to follow reporting procedures; or have left during the day without authorisation. These absences may constitute unauthorised absence. This can generally be dealt with by way of warnings under your disciplinary procedure, which must comply with the ACAS Code of Practice. You should also ensure that you take a consistent approach in taking disciplinary action, so that all employees are treated the same. Otherwise, you could be at risk of claims for constructive/unfair dismissal.

As more severe weather is forecast this weekend, you should act quickly to let your employees know where they stand. For further information or to discuss anything contained in this article please contact Donna Purchase.

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