Created in December 2010.
A quick guide to the position for employers and employees where adverse weather, transport strikes or other major incidents prevent employees getting to work.
This is one of a series of quick guides: see Quick guides.
There are a number of instances in which employees may be prevented from getting to work by major disruptions. The main examples are:
Weather. Extreme adverse weather conditions (usually heavy snow and ice) can cause road closures and public transport delays or cancellations.
Strikes. Industrial action on public transport networks such as trains, buses and tubes can prevent some employees travelling to work and make it a very difficult or lengthy journey for others.
Flight cancellations or delays. In the ordinary course of events, employees are sometimes delayed returning from holiday, necessitating an extra day's annual leave. However, more significant problems occur when airline industry strikes or other major incidents, such as terrorism or volcanic ash clouds, cause widespread delays lasting days or sometimes even weeks.
Employers should develop a strategy for dealing with major travel disruptions. They will need to consider how best to ensure business continuity and resilience if a significant proportion of staff are absent. They should also consider staff management issues such as whether to pay staff who are absent, whether to allow staff to work at home or instruct them to attend an alternative workplace, and how to keep in contact with staff.
This is one of the most frequently asked questions in relation to travel disruptions. The answer depends on a combination of rights: the right not to suffer unlawful deductions from wages, and the employee's express and implied contractual rights.
It is unlawful to make a deduction from a worker's wages unless the deduction is authorised by statute, by a contractual term that has been notified to the worker in writing, or by the worker having given their prior written consent (section 13, Employment Rights Act 1996; see Practice note, Unlawful deductions from wages (www.practicallaw.com/6-201-7034)).
However, the absence of such specific authority is not necessarily decisive. The first thing to establish is whether there has been a "deduction" at all, and there will be no deduction unless the employee can establish some legal right to the wages in question.
Therefore, the key issue is to decide whether there is a contractual right to be paid if the employee cannot attend work.
The answer will depend first on the construction of the employment contract, specifically:
Express written or oral terms.
Wording in a staff handbook that has been expressly or impliedly incorporated into the contract.
A collective agreement with a trade union that has been expressly or impliedly incorporated into the contract.
An implied right derived from a custom and practice that is "reasonable, notorious and certain" (see Practice note, Implied terms in employment contracts: Terms implied by custom and practice (www.practicallaw.com/9-200-2045)).
However, there is often no obvious express or incorporated term, and no evidence of custom and practice. The basic contractual position in such cases is that wages are not payable unless the employee has provided consideration.
In this context, the courts have identified two types of contract:
Contracts in which the consideration is the actual performance of work by the employee.
Contracts in which the consideration is the employee's "readiness and willingness" to work if they are able.
(Petrie v MacFisheries Ltd [1940] 1 KB 258 (CA); O'Grady v M Saper Ltd [1940] 2 KB 469 (CA).)
Piece-workers and hourly-paid employees with no guaranteed hours might fall into the first category identified above. In those cases, it seems clear that unless the employee actually turns up and works in accordance with their contract, there is no contractual right to wages.
Salaried employees might fall into the second category, since they are entitled to be paid even if not provided with work. In those cases, the position is less clear. The prevailing and oft-repeated view appears to be that employees who cannot get to work are not "ready" to work and are therefore not entitled to be paid, regardless of the reason for absence. A number of law firms and other organisations have published information on the web to that effect, and it appears to be supported by Acas (www.practicallaw.com/5-200-3023) (see Acas: Winter weather - travel disruption).
However, a look at the limited case law suggests that the position is not that simple. We have found no authority for a general presumption that employees do not need to be paid if they are unable to attend work. Indeed, there are authorities supporting the contrary view, that provided the non-performance of work is involuntary and unavoidable, the employee may be entitled to their wages. See Cuckson v Stones (1858) 1 E&E 248 and Marrison v Bell [1939] 2 KB 187 (CA) (sick employees entitled to wages) but compare Miles v Wakefield Metropolitan District Council [1987] IRLR 193 (HL) (employee refusing to work was not entitled to wages) and Burns v Santander UK plc [2011] IRLR 639 (employee held in custody pending trial not entitled to wages).
However, there is no rule that wages are always payable during unavoidable absence. Neither is there even a "presumption". The court or tribunal should look at all the circumstances, including the parties' conduct during the employment relationship, to see whether a term can be implied one way or the other. It should do so without any preconception or presumptions (Mears v Safecar [1982] IRLR 183 (CA)). In Mears the Court of Appeal held that an employee was not entitled to his salary during sickness absence, because the parties had throughout the employment relationship behaved as if that was the position.
In view of the lack of any conclusive case law, the rights of employees who are unable to work due to adverse weather or travel disruption may also depend to a large degree on how the parties have behaved on previous occasions. However, if there is nothing from which a contrary intention can be inferred, it would appear that employees should be able to rely on the ruling in Marrison that wages continue to be paid during unavoidable absence.
For further information on the case law, see Practice note, Unlawful deductions from wages: Absent employees (www.practicallaw.com/6-201-7034).
Assuming pay can be withheld, the employer should only withhold one day's pay per day of absence. It cannot, for example, deduct an additional sum in respect of holiday pay that the employees would have earned by working on the day in question (Cooper and others v Isle of Wight College [2008] IRLR 124 (QBD), a case involving absence due to industrial action; see Legal update, One-day strike: employer's entitlement to deduct from wages limited to wages for that day (www.practicallaw.com/8-379-8100)).
Employees that are stranded on business trips because of bad weather or flight delays are in a stronger position, since they are there to fulfil their duties at the behest of the employer. Therefore, they should be paid throughout their absence and any necessary additional expenses should be covered by the employer.
Leaving aside the legal uncertainty (see Is there a contractual right to be paid?, above), there are a number of business reasons to pay employees even if they are unable to come in to work.
"It's important to show empathy with employees – particularly those that normally perform well – as research shows that this flexibility and trust will pay off in the long-term, with employees more motivated and going the extra mile when they are able to get to work."(See CIPD, Employers need to be flexible during adverse weather conditions.)
"The handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled."(See Acas: Winter weather - travel disruption.)
Docking pay may breed resentment, a point made by the TUC (see TUC advice for getting to and from work in the snow, TUC press release, 5 January 2010). It may also be divisive; for example, employees that have lost pay may feel resentment towards those who were able to work from home and get paid.
There is also the risk of bad publicity associated with docking employees' wages, although public attitudes to this issue are split. Larger employers should certainly consider the risk of adverse press coverage, as the "Scrooge" label may be hard to shake off, especially around Christmas time.
Moreover, some employees may be tempted to falsely call in sick, in the hope of claiming company sick pay. This may in some cases lead to a breakdown of trust, as well as resentment by more honest colleagues.
On the other hand, paying all staff regardless of whether they are able to work is not without its problems. It may encourage some employees not to make the effort. Some will make what they consider to be a superhuman effort to get to work in adverse weather, and will feel put out if their colleagues are being paid to sit at home. It is important in those situations to ensure employees who turn up for work feel that their efforts have been recognised.
In many businesses, working from home will be an option for some employees. Managers and employees should plan ahead and consider taking work home if disruption is forecast. (See Practice note, Homeworking (www.practicallaw.com/3-200-3910).)
Where an employer operates at more than one site, it may consider sending employees to a more accessible site nearer to their home.
In some cases, depending on the weather conditions or the number of stranded employees, it may not be economical or even safe for a workplace to remain open. If an employer decides to close a workplace, it may be able to send employees to another workplace or ask them to work from home. In any case, any employees with contractually guaranteed hours or salary will still have to be paid if they are ready and willing to work, unless the employer can rely on contractual terms such as a lay-off clause (see, for example, Standard clauses, Lay-off and short-time working clauses (www.practicallaw.com/1-502-0342)).
The employer may want to offer employees the opportunity to take the absence as paid annual leave, assuming they have sufficient entitlement remaining.
Alternatively, an employer may decide that it wants to force all absent employees to take annual leave. However, there are two problems with this:
Employees may not have sufficient holiday entitlement left in the year.
Regulation 15 of the Working Time Regulations 1998 (SI 1998/1833) (WTR) requires notice to be given to employees in advance if the employer wants to force them to take holiday from their statutory annual leave entitlement. For example, one day's holiday would require two full days' notice, and a week's holiday would require two weeks' notice.
Designating absence as holiday without giving the necessary notice under the WTR would require a specific power in a "relevant agreement" (such as a written contract of employment) or the employee's explicit consent in writing. An exchange of e-mails should suffice.
(For further information, see Practice note, Holidays (www.practicallaw.com/4-201-8464).)
Employees who do not want to take annual leave or unpaid leave could be asked to make up the lost hours on other days. If the employer operates a flexi-time scheme or an annualised hours scheme, the terms of the scheme may already allow this sort of solution. Even where there is no such scheme, employers and employees may reach an agreement over the lost hours.
Employees have a right to take a "reasonable" amount of time off because of the unexpected disruption or termination of a dependant's care arrangements (sections 57A and 57B, ERA 1996; see Practice note, Time off for dependants (www.practicallaw.com/0-200-8358)). Bad weather or other disruption might lead to a school or nursery being closed, or a nanny being unavailable, with the result that an employee has to take the day off to look after children in any case.
In these circumstances, the employer cannot force the employee to use up their paid annual leave entitlement, and must not subject the employee to any detriment as a result of exercising this right.
The employee has no statutory right to be paid for such time off. However, some employers have a dependant care leave policy that provides for payment (for example, by paying for the first day of absence). If this is the case, the employer will have to pay the employee. In those circumstances, it may seem unreasonable and divisive not to apply the same pay arrangements to stranded employees who do not have dependants.
While employers may baulk at the idea of giving unlimited paid leave to stranded employees, an alternative is to give limited paid leave, after which employees must either take unpaid leave, make up the lost hours, or agree to count it against their paid annual leave entitlement. For example, the employer may limit paid leave to one or two consecutive days' absence, or (for instance) three days in any year.
Many workplaces, particularly hospitals and other emergency services, will have to make arrangements to cover absent employees so as to maintain an adequate level of service. The strict rules on rest periods under the Working Time Regulations are likely to be waived in those cases, but employers should ensure that employees are given compensatory rest, and that their working hours do not present a health and safety risk. (See Practice note, Working Time Regulations: Rest periods and rest breaks (www.practicallaw.com/0-200-4685).)