With the ‘Beast From The East’ hitting the UK hard over the last several days and causing major disruption particularly for those travelling to work, many places of work will find that they are short on employee numbers with some employees being able to ‘plough’ through the wintery conditions and others forced to stay at home. So what about those employees who are forced to stay at home, should they be paid when they experience travel disruption and cannot attend work?
The answer to this question depends on 2 matters.
The first matter to consider is that the employee should not suffer from an unlawful deduction from wages.
This means that it is unlawful to deduct wages from an employee unless the deduction is authorised by statue, a term in the employee’s contract which they have been informed of or if the employee has given their written consent previously. It is not a simple question of the deduction being authorised, the question to ask is in fact whether there has been a deduction at all. A deduction can only exist where an employee can show that they have a legal right to those wages. What is more important is to show that the employee has a contractual right to be paid if they cannot attend work.
The second matter to consider is whether there are any express or implied rights in the employee’s contract.
Each employees, employment contract is different but you would need to look at the following: whether there are express or oral terms, whether there was any wording contained in the staff handbook which has been incorporated into the employee’s contract, whether any agreement has been reached with a Trade Union which has been incorporated into the employee’s contract or a right which has come from a custom or practice. These instances are unlikely to exist in most employment contracts, unless employees are willing to provide ‘consideration’ which is usually based on the employee’s performance and their ‘readiness and willingness’ to work if they can.
Most salaried employees would fall into the second group of being ‘ready and willing’. It is usually said that if this type of employee is unable to get to work they are considered ‘not ready for work’ and not entitled to be paid.
But there have been cases which have proved the opposite and have shown that if an employee is unable to work because of circumstances beyond their control they are entitled to be paid. There is no hard and fast rule that wages must always be paid for unavoidable absences.
Given the lack of guidance, the rights of employees who are unable to travel to work can depend on how both parties namely the employer and employee have behaved in the past.
If no evidence can be shown of inappropriate behaviour on either sides part – it would look as though employees should be entitled to receive their wages and continue to be paid during unavoidable absences such as through adverse weather conditions.
What about dependents that are forced to take off days because of bad whether which has led to school closures or child minders being unavailable? Employees can take a ‘reasonable’ amount of time off in these scenarios and cannot be expected to use their holidays and employers must not act in a way which causes detriment to the employee. It should be noted that employees have no statutory right to paid for this time. Some employers do have arrangements for these types of situations and so must pay their employees.