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30th November 2017

With a Cold Snap Looming, Can Employers Make Deductions From Pay If Employees Can’t Get To Work?

Businesses face the prospect of a fall in productivity, either due to absenteeism, employees being unable to complete work, or a combination of the two as weather conditions worsen as we move into winter.

A common enquiry we receive is whether employers are obliged to remunerate employees in the usual way if they are absent due to bad weather.

From a legal perspective, non-attendance of employees at work due to bad weather touches on several of their employment rights: their express and implied contractual terms and their right not to suffer unlawful deductions of wages.

The Contractual Position

If an employer’s position is that deductions should be made from an employee’s pay for non-attendance at work due to bad weather, the employer must first establish whether the employee has a contractual right to be paid in such circumstances. This will depend upon the express written terms of the employee’s contract, any terms in the staff handbook which have been expressly or impliedly incorporated into the contract, any collective agreement with trade unions or any implied right arising from a custom and practice of paying employees.

Often, the contractual position is unclear, and in these circumstances we would revert to the basic contractual position that wages are not payable where consideration has not been provided by the employee. Consideration can take the form of actual performance of the work, or the employee’s readiness and willingness to work.

Where employees are hourly paid and engaged on contracts with no guaranteed hours, as is often the case in the care sector, then this would likely fall within the first category and these employees would have no contractual right to be paid unless they attended work and completed their duties.

The position is less clear for salaried employees, who are entitled to be paid even where they are not provided with work. While the employer’s position in this situation would be that, where employees are unable to get to work they would not be “ready” to work, the legal position is not conclusive, and therefore an employer needs to seek legal advice and give careful consideration to whether to make a deduction.

If an employer wants to make a deduction from an employee’s wages where they do not attend work due to bad weather, the employer would need an express deductions clause within the contract of employment in order to lawfully deduct the monies.

However, even in circumstances where employers can deduct from an employee’s wages without falling foul of the law, they should be mindful of the potential for detrimental impact upon morale if deductions are made; employees may feel that there is no point in going the extra mile and this can create resentment and have a lasting impact upon productivity. In addition, the employer needs to consider the potential for reputational damage, particularly if deductions are made in the run-up to Christmas.

Furthermore, where employees are unable to make it to work due to bad weather, they may feel backed into a corner to call in sick in order to access Company sick pay if they believe their employer will dock their pay if they are unable to make it in to work, and this can then give rise to subsequent trust issues.

Of course, on the flip side, there is the potential for resentment caused to those who manage to make the commute to work and employers should endeavour to recognise the effort they have made in some way.

Health and Safety Obligations

Another important consideration for employers is their Health and Safety obligations towards their employees; if the business cannot be safely run then the employer should close for the day and send staff home. In this situation, it is even more important that advice is sought as to whether deductions from pay could be made without falling foul of the law, as the employer has taken the decision to impose the closure rather than the employee being unable to attend the workplace.

Have a Clear Policy in Place

ACAS encourages employers to be flexible and to have a clear policy in place for dealing with the disruption caused by bad weather and we would echo this advice. Your policy should document the procedure to be followed when adverse weather is forecast and when it arrives. Employees should be reminded of the provisions when bad weather is forecast and employers should ensure they implement them consistently.

From a practical point of view, if the business remains operational but employees are unable to make it to work due to the poor weather conditions, there are a number of options available as an alternative to docking employees’ pay. Where bad weather is forecast, the situation can be pre-empted by agreeing that employees can work from home where appropriate, or from an alternative place of work if one exists. When bad weather hits, employees could also be offered the option to take the time off as paid annual leave. Employers should also be mindful of employees’ statutory right to unpaid time off to care for dependants, for example where schools are closed.

Finally, employers should note that employees do not need any qualifying length of service in order to make a claim for an unlawful deduction of wages so, if you do wish to make a deduction from employees’ pay following absences during bad weather, you should always seek legal advice as to whether such a deduction is likely to be unlawful.

*All information is correct at the time of publishing

Katy Parkinson

Napthens LLP – Employment Law Specialist

Katy is one of our Employment Law Specialists from Napthens Solicitors. Read more

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