Out-Law Guide 4 min. read
01 Mar 2019, 5:35 pm
As the winter weather bites, what protection do you have to provide for your employees from the chill?
For workers who work inside, certain regulations set out the rules on workplace temperatures. The general rule is that the temperature in workplaces should be at least 16 degrees Celsius. However, there is no legal minimum outdoor working temperature so employers need to rely on thermal risk assessments.
In very cold weather, outdoor workers face two major health problems: hypothermia and frostbite. There is therefore extensive HSE guidance about protective clothing for cold weather, health issues and management guidelines. (HSE suggests, for example, "allowing sufficient breaks to enable employees to get hot drinks or to warm up in heated areas.")
Our guide to the employment law implications of volcanic ash deals with similar issues about employees not making it in to work are similar.
If schools are closed or an employee's nanny is unable to make it to work because of the severe weather and there is no one else available to look after the children at such short notice, what are the implications for employers?
To avoid the office becoming a temporary crèche, there are statutory rules which allow parents to take time off when there is an 'unexpected disruption to childcare' and parents are protected from suffering a detriment for doing so.
Arguably, a school closure is not the same as a disruption to 'childcare'. However, if the school closure was announced first thing in the morning and alternative childcare arrangements cannot be made, this could be seen as constituting an emergency situation and employees would be entitled to statutory protection for taking the day off. Strictly, the day would be unpaid but not all employers will take this approach. It is also important for employers to adopt a consistent approach to the policy adopted for employees without children.
If it is safe to travel, employees should come into work as usual. If employees are concerned that the conditions are not safe or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees have mobile devices and, if not, then they can access their work email and office applications remotely via a laptop, home PC or mobile phone.
However, even though they are at home, employees need to be clear that they must still work as far as possible and not just watch TV. A home working policy could be helpful here making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output.
What if an employee could have made it into work but chooses not to?
If you believe that an employee is using the weather conditions as an excuse for absence (or lateness), particularly if they live locally, this could be a disciplinary matter.
However, it is doubtful that most employers would want to devote time and resources to investigating the circumstances of each individual worker who is suspected of taking a 'snowball' day.
In a blatant or persistent case you may, of course, choose to investigate the matter in the usual way and take any necessary action in line with the company's disciplinary policy. Alternatively, when the initial conditions that made travel to work impossible have subsided, you could let employees know by phone, email or text that any further time off will need to be taken as holiday. You may find that once this has been communicated, employees suddenly start finding ways to get in.
What if you are forced to close the office due to the severe weather conditions?
If you decide to temporarily close your business premises at short notice because of unforeseen circumstances, such as heavy snowfall, and there is no work available for your employees as a result, you cannot usually withhold pay.
If you do, employees could bring unauthorised deduction from wages claims to recover the pay owed. The only exception to this is if you have an 'unpaid lay-off' clause in your contracts of employment, or the employees expressly consent to being laid off without pay.
There are, however, complicated rules surrounding lay-off clauses, including rules about statutory guarantee payments, and you should take legal advice before proceeding.
Employees who have battled into work, often against the odds, may resent the fact that others made less effort, especially if, once they are in the office, they have to work extra hard to cover those who are absent. Ideally, the employees' efforts should not go unnoticed – though days off in lieu or other financial rewards are unlikely.
However, employers should carefully observe weather warnings and let employees leave when appropriate to avoid any treacherous travel conditions on the way home. Never ask staff to disregard official weather and travel advice.
It may seem that the UK is beset by 'unexpected' snowy weather every year. It is therefore worth thinking about alternative ways to manage the situation. Employers should consider introducing an 'adverse weather policy' so employees know what you expect of them when severe weather strikes. This will also help avoid confusion and conflict when the snowfall arrives.
Alternatively, you could amend your normal absence policy to cover such instances. The policy should contain guidance about workplace closures, disruptions to public transport, working from home and remote IT access, whether employees will be paid if they fail to attend work, disciplinary sanctions for 'snowball' days and whom employees should contact once they know they will be unable to make it in.
With occurrences of severe weather on the rise, putting in place a clear adverse weather policy could be a worthwhile investment.