8th March 2018

Bad Weather Policies: Beast from the East

Blackadders to merge with Plenderleath Runcie

They say you don’t get a second chance to make a great first impression. As a trainee solicitor moving departments to the award-winning Employment Team today, I thought it a good idea to arrive early at work. I did achieve just that with the “Beast from the East” only managing to cause a small slip and numb face.

But what about my contemporaries across Scotland also moving departments yesterday waking up to tackle the Beast from the East? I would expect that a number of them didn’t make it in or had to make alternative arrangements. It is important for employers to properly consider how to deal with the impact of bad weather on the workplace.

Absent employees – No right to pay

In circumstances where employees cannot get to work due to extreme weather, employers are not automatically obliged to pay them and such an absence can be treated as unauthorised. It is helpful for both employers and employees if a clear policy is in place to ensure that employees are aware of their responsibilities. This should be flexible and include provisions including whether employees will be paid where they cannot get to work, alternative methods of working and repercussions of unauthorised absence. It is best practice to make employees aware of the policy by making it available on the company intranet or running new employees through it on their induction.

Closed workplace – Hurray!

The news that everybody has been waiting for; the email from HR advising that the office is closed. The office may be forced to close due to a majority of staff being unable to commute to work or it being unsafe to remain open. Employers should remember that employees who have contracted hours must be paid where they are ready and willing to work. Employers cannot insist that the time off should be taken as annual leave. However, staff can still be required to work from an alternative workplace or at home in line with company policy.

Some employment contracts provide for “lay-off” clauses which employers can incorporate into contracts where there is not enough work for employees. This allows them to lay-off employees without pay. In these circumstances, it is still unlawful to withhold pay without the written consent of the employee. The operation of these clauses is relatively complex and an employer should seek legal advice before incorporating one into an employment contract or implementing. A layoff might be considered appropriate should the Beast continue.

Untruthful employees – A day at home with Santa Paws?

Inevitably, some employees will use the decline in weather conditions as an opportunity to join Santa Paws rolling in the snow (see picture). Where an employer has reasonable grounds to believe that an employee did not have problems travelling to work, they have called in sick when they are not sick or have not made a reasonable effort to come into work then this can be classified as unauthorised absence. This would also be regarded as an act of misconduct and disciplinary procedures can commence. It is important to bear in mind that before starting any disciplinary procedures, an employer must undertake a full investigation reaching a fair decision regarding disciplinary sanctions based on a reasonable belief. Any employer does not need proof beyond a reasonable doubt.

School’s out for… snow?

Any right to time off to allow for employees to care for their children only generally applies where there is an “unexpected disruption to child care”. This means that the purpose of the leave is not to allow employees to care for their children directly themselves. Employees are limited to taking time off to deal with an emergency and make longer-term arrangements for child care.

The rules in relation to absence also apply to child care emergencies and there is no statutory right to pay during such time off when caring for children. The company policy in relation to bad weather should cover this point and make the employer’s position clear. Again, the company policy should provide a degree of flexibility and consistency allowing flexible working such as working from home, flexi-time or providing employees with the opportunity to make up the lost time at a later date.

Health and Safety

Common sense must prevail and employers cannot insist on employees coming into work regardless of weather. If, like this week, a red weather warning is issued or weather deteriorates rapidly employers should consider allowing employees to leave work early.

Operating a fair and reasonable bad weather policy is an opportunity to increase the morale of staff and productivity in the workplace. Implementing a clear, consistent and flexible bad weather policy will allow employees to plan ahead of bad weather and provide an opportunity to make alternative arrangements to work in extreme weather. Meanwhile, the Blackadders Employment Team’s Beast from the East, will be rolling around in the snow blissfully untroubled by any policies and procedures.

Take care in the snow.
Beware of the Beast.
Be aware.
Be Fair.

Duncan Milne
Trainee Solicitor – Employment Law




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