Braving the storms: what every employee and employer needs to know about winter commuting

18th February 2020

Storm Dennis swept across the UK on Sunday causing damage to roads and rail networks, and widespread flooding.

This brings challenges for employers and employees alike, when as a result many people are delayed or can’t get in to work at all. So what does the law say when it comes to transport troubles in winter?

With the disruption of difficult weather expected to continue, DAS Law’s Simon Roberts explains the basics you need to know…

If an employee can’t get to work

There is no law which says that an employer must pay an employee who can’t get to work due to travel disruption or adverse weather conditions. Of course, it may state in their employment contract that they will be paid under these circumstances, in which case employers must honour this.

It is usually not possible (or advisable) to force an employee to use up annual leave for any days they miss due to travel issues, although employees may wish to nominate a day as annual leave rather than not receiving any payment for it.

While it is legal not to pay staff who are unable to get into work (subject to what is written within their contract), it is usually best to be flexible in these situations and consider in each case whether or not to pay employees in these circumstances.

Bad weather is an obstacle which is outside of anyone’s control and it is inadvisable for employers to create incentives for employees to risk their safety attempting to get to work in poor conditions.

Sometimes, an employee may say they cannot come to work due to school closures forcing them to stay at home and look after their children. If the school was closed at short notice, this would be likely to constitute an emergency relating to a dependent, in which case they would be entitled to time off to arrange care for their children.

This type of leave does not have to be paid, although an employer may choose to have a different policy.

If disciplinary issues arise due to an employee being unable to get to work (for example, if it is part of a similar pattern of non-attendance or you suspect they simply chose not to come in), it is important that employers follow a fair procedure when tackling the issue, as they would with any disciplinary matter.

If the office is closed

If your employer has closed the office because it is inaccessible, or not enough staff are able to make it in, they should usually still pay employees for that day.

Withholding pay when employees are unable to work through no fault of their own could be an unauthorised deduction from wages or a serious breach of their contract of employment. In those circumstances, employees may be able to bring a legal claim against the company for non-payment of the wages and any losses.

Some employment contracts do however contain a temporary ‘lay-off’ clause - if this is the case, employers can refuse to pay full-pay to employees for a limited time and for days when the workplace is not open.

General advice

As travel disruption is likely to occur reliably year after year, it is recommended that employers put a policy in place covering what is expected of employees if the weather prevents them from getting to work and at relevant times of year dust-off the policy and remind employees of what it contains. This will ensure that there is no confusion regarding non-attendance and how it will be treated during bad weather.

If a business suffers particularly from widespread travel issues or is particularly exposed in poor weather conditions they may wish to consider a policy of allowing working from home or other off-site alternatives if the nature of the work allows it.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

Simon Roberts

Senior Associate, Solicitor

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