Businesses have had to deal with a number of external disruptions this year. Starting with the snow, we’ve had airport closures and now a 24 hour London Underground Tube strike, with only limited services running on the Northern and Dockland lines.
Some employees do go to extraordinary lengths to get into work despite having a journey of several hours and experience considerable delays with a Dunkirk style spirit. Others take the opportunity to have longer under the duvet and take it as a good enough reason to stay at home.
Should those employees get paid?
Many businesses have taken the view that they will pay employees if they are satisfied that the employees concerned genuinely could not get into work without considerable delay and an excessively long journey.
Other employers try to arrange for people to drive to work sharing lifts or arrange for taxis to collect key employees.
However, many businesses have not paid employees who, for whatever reason, don’t make it into work. They also have asked the employee to take the time as unpaid leave or annual leave (which would be paid).
Can employers do this?
In the absence of an agreement to the contrary - yes.
At first sight, this may not seem right. Is it fair that employees who take emergency time off for dependents must take that time unpaid, but employees who cannot make it in to work because of the tube strike get paid?
Surely, consistency is the key. If employees cannot get into work, the general principle is that they do not receive pay for those days.
Employers could treat staff on a case by case basis but if you, as an employer chose to do so, beware of any potential arguments of discrimination or less favourable treatment. For example, do not pay all full time staff that couldn't make it in to work, but withhold pay from your part time staff! It’s far better to treat all employees in the same way.
What if it happens again? Which it will no doubt!
- Make sure that your key employees have the ability to work from home.
- You need a contingency plan in place to ensure that your business can function if a large number of your staff are affected by something, such as the Tube strike
- Have clear policies in place about whether you will pay employees who cannot make it to work because of the situation and be clear in what circumstances payment will or will not be made.
- Also, ensure that you have reporting requirements in place to ensure that staff must notify you promptly if they find the journey proves to be too long after they’ve started out.
- Unlike weather disruption, we normally have notice of a strike. Ask employees to plan alternative ways to commute, let you know where they are and their anticipated arrival time. Alternatively, they should inform you well in advance if they think it’s too difficult for them to come in
Sue Evans, Partner, Lester Aldridge LLP