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To go to work or not go to work - a winter conundrum

Winter has finally hit the country with a vengeance this past week. As parts of the country have been lashed by gale force winds, deluges of rain, and blankets of snow, what do you do if your staff can't get to work? Well, first up, if a natural disaster or other serious event happens, the health, safety and security of people should be your main concern. Under the Health and Safety at Work Act 2015, this must come before thinking about the interests of your business. Also important to note is that BOTH you and your employees remember to keep in regular contact and deal with each other in good faith during such events.

At this time of year, there are different reasons why someone may not be able to get to work. Other than being sick or looking after someone who is sick, roads may be blocked or closed due to snow, flooding, or other storm damage.

You can't assume that time away from work in these circumstances would be either paid or unpaid without looking at the employment agreement, workplace policies (where you have them) and the specific circumstances. You and your employees should look at your employment agreements to see if this type of situation is covered. If it’s not in the agreement, then it is up to both of you to talk about it in good faith and agree what the time away from work will be classed as.

You need to consider whether the employee is willing and able to work or not willing but able to work. These are two different scenarios. If the employee is unwilling to work but is able to get to work, then it would be more likely that the employee either has to take leave or if they do not have any leave available, leave without pay.

If they are willing to work, but unable to get to work because of the conditions, then generally speaking you will have to pay the employee. It is neither their fault nor yours if they cannot get to work due to road closures for example. As stated above, you need to think of the health and safety risk of expecting an employee to travel to work if roads are closed. However, if there are other means of public transport (e.g. buses or trains) that are operating, it is realistic to expect the employee to make use of these to get to work. If they don't want to use public transport, then this means that they are unwilling to come to work, as the ability to get to work is available to them.

If the employee's children, for example, are not injured or sick, but the employee has to stay at home because the child's school is closed, the employee CAN NOT take sick leave. However, if their work enables it, you may agree to the employee working from home, or the employee may request to take annual leave.

The key to what to do, lies in talking, in good faith, with each staff member. Their circumstances will all be different. Depending on those circumstances you may agree a range of options for dealing with their absence:

  • Take annual leave

  • Take anticipated annual leave

  • Using an entitled alternative holiday (if available)

  • Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee

  • Leave without pay

Whichever option the you and your employees agree on will depend upon the circumstances, including the nature and extent of the circumstances and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, you will need to consider further options in good faith (and consider the impact these options will have on business recovery later).

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