Can’t Get to Work?
As the recent RMT strikes have demonstrated, there may be circumstances in which employees will find it difficult or even entirely infeasible to travel to work. Whether you are an employer or employee, it is important to understand the rights and obligations that attach to such scenarios.
Employees are not automatically entitled to receive their pay where they have been prevented from travelling to work due to adverse weather or travel disruption. In such circumstances, employees should inform their employer as soon as possible. If an employee is able to work from home or an alternative work location that is accessible, then that would be a simple solution, but of course there are many roles where this is not possible.
Employees may ask to take the time off as paid annual leave, it would be for the employer to decide if they accept this request or not and of course would require the employee to have adequate accrued but unused holiday. If it is the employer that would prefer the individual to take it as annual leave but the employee does not wish to do so, subject to any contrary terms in the employment contract, it can only insist on this if the employer is able to give adequate written notice to the employee. The requirement for such notice is at least double the length of leave to be taken. So, if the employer wanted the employee to take two days’ annual leave, they would have to give four days’ notice. Where there is sufficient advanced warning of strike action or adverse weather conditions, the ability to require employees to take leave may be useful. However, where such obstacles arise suddenly or unexpectedly, this is likely to be a less helpful option.
An alternative option would be to ask impacted employees to make up any time missed off work at a later date. However, unless the employment contract stipulates otherwise, the employer cannot insist on this and it may not be practicable in all circumstances.
It’s important to highlight that in the unusual circumstances where the employee ordinarily gets to work via employer-provided transport, and is ready, willing and available to work, but the transport is cancelled, the employee would still be entitled to their full pay for any work missed unless their contract clearly specifies otherwise.
Similarly, if the employer had to close the workplace, whether that be due to disruption inside or outside of the workplace, and an employee cannot work from home or an alternative workplace but is otherwise ready, willing and available to work, the employee would still be entitled to full pay unless their contract clearly specifies otherwise.
Where an employee’s child’s school is closed, or normal childcare arrangements have been unexpectedly disrupted, the employee will be entitled to unpaid emergency time off to look after their child. Again, the employee should contact their employer as soon as possible to explain the situation to them. The position is similar where caring arrangements are cancelled for an employee’s disabled relative, or an employee’s partner is seriously injured due to bad weather. This time off will be unpaid, unless the employer and employee have agreed otherwise.
It’s important to note however that, while employers may be legally entitled to treat some of the above circumstances as unpaid leave, there are various commercial reasons why this might not be the best idea, including general employee relations concerns and negative publicity. In some situations they may even need to consider their wider obligations to ensure the health, safety and welfare of employees if the requirement to attend the workplace could potentially present a serious risk to employees – for example, because of icy roads, or heavy rainfall.
It is therefore advisable to consider the specific circumstances carefully before deciding how to proceed.
Employers should develop a strategy for dealing with travel disruptions, ensuring that they are able to maintain business continuity where a significant number of staff are unable to attend the workplace.
Ultimately, the employment contract will be most important when determining the rights available to employers and employees in this context. Employers may want to ensure that they have adequate contractual protections in place to give as much flexibility as possible and to prevent them from incurring undue costs in the event of significant travel disruption. If you need any advice on your contracts of employment, please get in touch with us at [email protected]