How should businesses deal with staff unable to get to work through no fault of their own?
Travel disruption is becoming a way of life for Southern Railway commuters, and there are more strikes on the way. However, commuting problems are not limited to rail strikes; traffic delays, bad weather and flight cancellations also feature high on the list of reasons that staff can’t make it in to work or turn up late.
Issues around travel disruption can be tricky from a legal point of view, but this is a situation where good planning and documentation can really help.
Some organisations may consider that staff that are involuntarily absent do not need to be paid because they are not carrying out their work. But this could amount to an unlawful deduction of wages. There is an obvious distinction here between workers who are on piece work contracts or who are hourly paid (where the employee is clearly expected to provide services in return for payment) and contracts which pay a salary. There is case law that indicates that salaried employees should be paid if they are ‘ready and willing’ to work. However, an employment tribunal is likely to look at the full circumstances of any case, whether such absences have been paid before, and what company policy is.
There are other ways of dealing with the issue. Compulsory annual leave for the days off is one option. This will generally be subject to a notice requirement of twice the amount of leave being stipulated and it is unlikely that employers will have this luxury of time. One way around this is to reduce the amount of notice that needs to be given in employment contracts. Requiring staff to make up the additional hours is also an option. Employers will need to check employment contracts to make sure they have this flexibility built in, otherwise this will need to be agreed with the employee or provided for in an appropriate policy.
The ability to ask staff work to from home without notice is an obvious solution to the problem of no-fault absenteeism, and now may be a good time to press the case for flexible working. HR should ensure they have input into the content of any business continuity plan, as the ability to work from alternative locations will be a central consideration.
However, employers should be aware of risks of treating employees unequally. The key risk here is where employers allow staff to have paid time off because of unforeseen disruption to a dependant’s care arrangements (often mirroring the statutory right to unpaid time off in these circumstances). As those who benefit from this policy are most likely to be women, less favourable treatment of, for example, male employees asking for paid time off when there is travel disruption, could amount to indirect sex discrimination.
Furthermore, while alternative travel arrangements, by car and so on, may be a real alternative for some members of staff, this may not be an option for those who have a disability, so employers should avoid applying blanket policies strictly and always a look at individual circumstances.
One of the key issues with travel disruption is uncertainty as to what to do, and this can be settled with a good travel disruption policy. This should make it clear that employees are required to make a reasonable effort to get into work by all modes of transport, should make checks throughout the day on the situation, and that there may be disciplinary penalties for breaches of the policy. It should also clarify how employees should keep in touch with the organisation and circumstances in which lost time should be made up, taken as annual leave, or will be unpaid. Employers may also need to implement a home working policy, covering health and safety requirements and data protection regulations in particular.
An organisation’s employment contracts can provide a useful back-up for more controversial policy approaches. For instance, the contract can authorise deductions from wages, make it clear that actual work is required in exchange for receiving a salary, and stipulate shorter notice for employees taking compulsory annual leave.
Ben Power is the managing partner of employment law firm Springhouse solicitors.
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