Duvet Days and Snow Days: What the Law has to Say
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Aside from the snowman, the above issues can all be looked at from an employment law angle and are worth considering, not least because spring is still a long way away.
Employees who are not able to get to work on account of snow generally expect to receive their salary. However, unless their employment contract expressly provides for this, there is no obligation for employers to pay the day’s wages. Despite this, employers generally accept that deducting salary in this instance is likely to cause low morale and is unfair on those employees genuinely unable to get to work. |
Employers should be aware that, although unlikely, deducting pay in such circumstances might lead to employees bringing a claim for unfair deduction from wages. Commercially speaking, the claim would probably be more costly to defend than it would be to pay the wages in the first place.
Other employers faced with this issue may chose to insist that their employees take the snow day as part of their annual holiday entitlement, so that the employee can receive salary and the employer is not losing a day’s work. Again, unless this is contractually provided for, employees may be entitled to bring a claim in such circumstances.
Indeed, a balance must clearly be struck to take into consideration those members of staff who genuinely cannot get into work and those who are using the excuse as a ‘duvet day’.
The law does not offer much guidance on the above-mentioned situation, although the Employment Rights Act does provide for employees to be permitted to take a reasonable amount of time off during working hours in order to take any necessary action due to unexpected disruption or termination or arrangements for the care of their child.
The Act also allows employees to take time off to deal with an incident involving their child which occurs unexpectedly in a period during which an educational establishment the child attends is responsible for him. Schools closing on account of snow would reasonably be considered as such a situation where employees can be permitted to have time off work.
Employers must ensure that they view such a situation reasonably and must be satisfied as to the exact circumstances for the time that is taken off. Employers do not have to pay employees for time off work for these purposes. However, employees may claim that this it is unfair if, on the same day as having to look after their child, their peers receive salary when they have not been able to work on account of a train cancellation.
When faced with the variety of snow excuse stories by employees, employers must not use their discretion or make decisions on a case-by-case basis. Doing so could leave the employers open to claims, not only for unfair deductions from wages, but also for indirect discrimination if a provision about pay is being applied inconsistently.
One obvious example could include claims for sex discrimination if only female employees do not receive wages when they are taking time off to care for their children whose school has shut. Employers must ensure that they are prepared for all such scenarios, and that they have a fair and consistent policy in place – which is available to all members of staff – well in advance of it having to be implemented.
Practicality is also an important consideration. Employers should make it as easy as possible for employees to work from home, allowing remote email access and, where possible, asking employees to ensure that they take work home the night before any bad weather is forecast.
Last, but not least, the health and safety of employees must be particularly born in mind in such circumstances. Whatever the weather, employers must always be aware of the duty of care they owe to employees, but particularly so in bad weather conditions. Employers should obviously never insist the employee makes his way to work when authorities are advising against non-essential travel.
Without debating the reasons why this country is unable to cope with the snow, from an employment law perspective, planning and preparation are key. Using contingency plans, acting consistently, implementing transparent policies and using common sense are all ways in which employers can deal with the inevitable disruption caused by those pretty snowflakes which cause so much delight to children.
For advice on your employment policies or any other employment-related issue, please contact our employment team:
Nicholas C J Lakeland: ncjl@silvermansherliker.co.uk
Martin D Donoghue: mdd@silvermansherliker.co.uk
Victoria J Russell: vjr@silvermansherliker.co.uk
Michael S Olley: mso@silvermansherliker.co.uk
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