Employer responsibilities in adverse weather conditions

So far since November 2021 (and at the time of writing), the UK has seen two storms – Arwen and Barra – both of which brought widespread disruption, with multiple road closures and thousands of homes being left without power for extended periods. As these storms become more frequent and powerful due to the effects of a warming climate, employers need to ensure they understand their responsibilities towards staff with regard to such events and that they have properly prepared.

Employers’ duties during storms and bad weather

Employers generally have a duty of care to their workforce under the Health and Safety at Work Act 1974 and ensuing regulations. Employers should factor the impact of adverse weather into their normal risk assessments and consider in particular:

1. Circumstances in which it may be unsafe to open the workplace.
2. Plans for action if the weather deteriorates during the working day.
3. The potential risks of asking staff to travel to the workplace in adverse weather.
4. Where there are any such risks, are these increased for workers with disabilities or who are pregnant?
5. What preventative measures they can take to mitigate the risks associated with adverse weather.

Employee pay for absence due to adverse weather

The standard position is that it is unlawful to make a deduction from a worker’s wage unless the deduction is otherwise authorised, whether that be by statute, contract or consent. Careful drafting at the outset of an employment relationship either in the contract of employment or staff handbook can allow an employer to withhold pay where staff cannot work due to adverse weather. In the absence of any such clear drafting, the law in relation to whether it is lawful to deduct pay where an employee cannot attend work due to adverse weather is currently unclear, and this ambiguity could potentially lead to a claim for unlawful deduction from wages, breach of contract and (in extreme circumstances) constructive dismissal if pay is withheld.

The position is different, however, for those employees on work trips who become stranded due to adverse weather. In those circumstances, it has been has established that employees who are stranded due to adverse weather whilst travelling on business should be paid throughout their absence and any necessary additional expenses should also be covered by the employer, in the normal way.

Employers may wish to exercise their discretion to allow full or limited pay in the event staff cannot get to the workplace due to bad weather. In those circumstances, employers should apply their discretion in a non-discriminatory way. Employers should also make clear to staff that they are making the payments entirely as a gesture of goodwill and that no contractual right to pay in future instances of adverse weather is established.

Planning for alternatives

To avoid pay becoming an issue, employers can factor in alternatives to physically attending the workplace into their planning. Such alternatives might include:

• Homeworking: Given the ongoing effects of the pandemic, many employers have allowed staff to work from home. This is something that employers could consider allowing to happen during periods of adverse weather where travel may be disrupted.
• Laying off: Alternatively, if the contract of employment allows it, an employer could temporarily lay off staff where they are unable to open a workplace due to adverse weather.
• Annual leave: Offer staff the opportunity to take paid annual leave. Given adverse weather events often occur at short notice, it is unlikely employers would be able to give sufficient notice requiring staff to take holiday on nominated days in accordance with the working time regulations. However, an agreement could be sought.
• Dependants’ leave: School and nursery closures during periods of adverse weather may require staff to take time off or lead to requests to work from home. Employers should be mindful of the fact that employees have a right to take a ‘reasonable’ amount of dependants’ leave in such circumstances. Whilst there is no statutory right to be paid for such time off, employers should consult their individual internal policies to determine whether any such time off will be paid or unpaid.

Action to take

Taking the above into account, employers should look to develop detailed strategies for dealing with major travel disruptions and translate these into easy to understand and easily accessible policies for staff.

An adverse weather policy should include information on what is expected of employees in relation to travelling to work during periods of bad weather. It should also set out arrangements for if the weather deteriorates during the work day, alternatives for attending the workplace during periods of bad weather and how to put these into action. In addition, the policy should make it clear as to what staff should do if they are unable to get to work and the potential implications that may be involved, including whether time off will be paid or unpaid.

Clear communication is often the most effective way to maintain good employee relations and reduce the risks associated with potential tribunal claims should something go wrong.