This week I’ve been getting lots of questions about how to deal with ‘snow days’ when staff do not come into work because of the weather, so I’m addressing some of them here.
Do I need to pay employees who don’t come in because of the weather?
You will all be thrilled to know there is not an easy answer to this. The fundamental part of an employment relationship is that contractually an employee is required to show up at work and do his/her job, and in return the employer is required to pay an agreed salary. So far so good; in theory if the employee’s contractual obligations are not fulfilled, there is no need to pay them.
However employees are protected against unauthorised deductions from their wages, which means the wording in your contracts (if any) regarding deductions from salary is important as is the question of whether the absence is unauthorised.
There has been some comment in the media along the lines that unless the contract specifically states that absence because of adverse weather is unauthorised, a deduction from pay would be unauthorised and therefore illegal. I disagree strongly with these comments. That implies that there is a default position that if the reason for absence is a ‘good’ one, and is not specified as being unauthorised, it should be paid. If you follow that line of thought to its logical conclusion, it is suggesting that in order to legally withhold pay for unauthorised absence, an employer must specifically list all those possible reasons for absence which would be considered unauthorised. Of course that is not remotely realistic or reasonable.
There are certain types of absence which are considered in law to be ‘good’ reasons, such as emergency leave for dependents, jury service, TA duty and the like. These ‘good’ reasons are protected in law but do not have to be paid in most instances. If there was an automatic right to paid absence for ‘good’ reasons unless contracts specifically said not, then there would be no need for these types of absence to be protected in law.
Most employers have details either in their contracts or policies as to what kinds of absences are authorised and for which of those employees can expect to be paid. I think it’s perfectly reasonable to assume therefore that absences for other reasons are not authorised unless agreed otherwise, and therefore pay can be deducted in those instances.
What about if the employee could come to work but has to stay at home because their child’s school or nursery is closed?
This would be classed as emergency leave for dependents, which is a ‘reasonable’ amount of unpaid leave for staff to deal with unexpected situations. However although the legislation doesn’t specifically state how many days is allowed, the leave is for emergencies only, so if it becomes clear that the school or childcare setting will be closed for an extended period of time, the employee can be expected to make alternative arrangements.
Can I make employees take holiday instead?
An employer is perfectly within its rights to dictate when holiday is taken – as long as employees get the right amount of time off, there are no legal restrictions on what internal rules there are about when it is taken. Having said that, to dictate holiday a certain amount of notice must be given, so technically you can’t tell an employee who rings in that they must take holiday. Having said that, most will opt to take holiday if the alternative is unpaid leave.
So what should I do?
Management discretion is a wonderful thing, and if possible, and if you are satisfied that employees are making all reasonable effort to come into work, agreeing something that avoids docking pay would be best and would go a long way towards enhancing morale.
So consider the following:
I would also suggest some communication to all staff as soon as possible making sure everyone is clear what the deal is with bad weather. If you feel staff may consider taking advantage of the odd snowflake, you could use this opportunity to make sure everyone is clear such absence is unauthorised and will not be paid. This will not preclude you from using discretion at a later date.
If you’re reasonably confident most people are sensible and committed and will only fail to come in if absolutely necessary, you could confirm that it’s fine to take holiday or make up the time later or similar.