What is your Happy Colour?

By Jennifer Cashman
27 February, 2018

The impact of extreme weather on employee attendance

With all the talk of red, yellow and orange weather warnings, and promises of snowmen competitions later this week, employers are yet again facing the difficult task of navigating their employment obligations and are facing absenteeism, requests to work from home and employees arriving late for work as they deal with detours and impassable roads. So what are the HR implications and employment obligations in these circumstances? The question most commonly asked is whether an employer must pay an employee who is late or who fails to turn up for work at all as a result of bad weather conditions.

The answer will primarily depend on whether the non-attendance at work is due to the decision of the employer or the employee. In a nutshell, if the employer decides to close their premises or send employees home arising out of the weather conditions, they will generally have to pay their employees. If the workplace is open and work is available but the employees themselves chose not to come to work, arrive late or leave early, an employer will generally have no legal obligation to pay the employee for the absence.

Employees who do not attend work

An employee is under an obligation to fulfil their contractual hours of work and duties. If they do not do so, for whatever reason, then they have not performed their contractual obligations and are not entitled to pay.
Employers should, however, also bear in mind that a potential health and safety issue may arise if employees are unduly pressurised into attending work in dangerous conditions under threat of disciplinary action or docked pay.
Taking into account the legal issues as well as employee relations considerations and the potential impact on productivity if an employer decides to take a tough approach to non-attendance, it is advised that employers look at this issue on a case by case basis and adopt a balanced approach. Reasonable alternatives to considering reduction of pay would include allowing employees to take annual leave for days they are unable to travel to work, allowing them to work up missed time or facilitating them in working temporarily from home.

Workplace closure

Some employment contracts contain provisions enabling allow employers to put employees on short time working or lay-off when an event outside the employer’s control impacts on work. For those employers, it may be permissible to send employees home without having to compensate for the reduced hours of work although caution should be exercised when relying on these clauses for short closures. For employers without such a clause in the employment contract, a decision to send employees home could amount to a breach of contractual terms. Full pay for the lost hours would therefore be due under the Payment of Wages Act 1991. Failure to pay could lead to a successful unlawful deduction from wages claim from a disgruntled employee.
For a premises affected by flood damage which need to close for longer periods, an employer will have to consider lay-off and potentially redundancies depending on the duration of the closure and the impact on the employer’s financial position.

Concerns over genuineness of absence

If an employer has a concern that an employee has not made reasonable efforts to attend work and may have abused an absence management policy, this issue should be dealt with in accordance with the employer’s disciplinary procedure. An employer should be mindful of fairness and the proportionality of any sanction. When deciding whether to deal with an issue under a disciplinary procedure, an employer should the need to be consistent in its approach to employees who do not attend work and should also consider the time and resources that will be expended in dealing with an issue that may be difficult to determine the facts of.

Communication/ Policies

If weather conditions are interfering with travel, it is advisable that an employer ensures that its employees are made aware of its policy on lateness and non-attendance due to bad weather conditions. This can be achieved by issuing an information notice to employees, by email or otherwise in keeping with their usual communication practices and by dealing with the issue under the employer’s Absence Management policy or a dedicated Adverse Weather Policy. Best practice is to be transparent with employees and clearly communicate with them about what is expected in terms of attendance if it is an issue during poor weather conditions.

A policy or communication to employees should address the following:

• That all employees are expected to make a reasonable effort to get to work and make alternative travel arrangements
where possible (e,g, public transport)

• Whether employees will be paid and/or whether they will be permitted to take holidays/ work up lost time etc.

• The reporting procedure.

Employers looking to plan ahead may also find some useful guidance in publications such as the November 2011 publication from the Department of Jobs, Enterprise and Innovation on “Business Continuity Planning in Severe Weather”.

The past number of years have seen volcanic ash clouds, ice, snow and now floods. Unfortunately, absenteeism issues associated with extreme weather look certain to continue and employers can benefit from setting out the ground rules for employees.

For more information on the content of this Insight, please feel free to contact any member of our Employment team at +353 21 4802700.