Extreme winter weather conditions can cause problems resulting in difficulties for people getting to and from work.  In addition, if schools close, parents who cannot make alternative arrangements need to remain at home to look after their children.

So if an employee cannot attend work due to the wintry weather conditions, what is the situation?

With current technology some employees may be able to work from home.  This is not a right the employee can action, but it is open for discussion and agreement by the employer.

If this is not an option, the existing Contract of Employment, Employee Handbook or any Procedural/Policy manual may contain provisions that would apply in these circumstances.

In the absence of any contractual/established provision, the situation is as follows:

Unauthorised or Authorised?

An employee is usually required to attend work under their contract of employment on days and at times as agreed with the employer.  If the employee fails to attend there is no absolute obligation on employers to pay employees for the absence and additionally the absence may be considered as unauthorised.

However, the absence can become authorised, especially when the employee complies with absence reporting procedures and the employer is satisfied that a legitimate reason for being absent exists. 

In most cases when genuinely due to bad weather such absences would be authorised.  It will though be dependent upon the circumstances, such as: 

• where the employee lives in relation to the workplace; 
• weather conditions for that area; transport links between the employee’s home and workplace and so on.  Some employers may also wish to ascertain that the employee has made reasonable efforts to attend work.

Once satisfied, the employer may authorise the absence.  But being ‘authorised’ does not answer the paid or unpaid question.

Paid or Unpaid?

If employees are off all day then the answer will usually be ‘unpaid’.  Options might then include: 

• Where working days are variable, reschedule the working day,
• Allow booking of annual leave with pay to cover the lost day,
• Employee puts in make-up time i.e. work back the time lost.

Staff who are late in would normally be treated in the same way as lateness for any other reason.  This is the ‘default’ position.  Employers can then decide if they want to apply other measures e.g. such lates may not be part of reliability control, may be paid, may not disqualify employee from attendance bonus etc.

If the employee fails to attend work, because their colleague has been unable to pick them up (as normal) due to the adverse weather conditions, there is no absolute obligation on employers to pay employees for the absence in these circumstances, and additionally the absence may, depending on the circumstances, be considered as unauthorised.

Although rare these-days, where the Company provide transport (a service bus) from a nominated pick up point to the workplace, but due to the adverse weather conditions, the bus does not turn up, should the employee be paid if they are unable to get to work in these circumstances?  The decision will need to be determined on a case by case basis, as it will depend upon all the circumstances.  Factors to consider will include:

• The location of the workplace, in relation to the pick-up point/worker’s home location; 
• In the absence of company transport, could an employee get to work by walking, or by other means (e.g. public transport)?   
• What has happened in the past – what happened if the bus did not turn up because it had broken down?  Was the employee paid in those circumstances? Has the employer set a precedent? 

Dependent Leave Issues

If an employee could physically get to work in the weather conditions, (for example they live within a short walking distance from the workplace) but are unable to work because they need to look after their children due to school closure, the employee could apply for Dependent’s Leave.  This provides a parent with unpaid time off from work to deal with a family emergency involving a dependent.  The time off, is for the employee/parent to make child care arrangements not actually to provide the care themselves.  However, it is recognised that making such arrangements at short notice takes time, so an employee could be granted Dependent Leave for a day or so.

Other situations that employers might need to consider:

• If employees can attend work, but the employer is not able to provide work due to the weather, (e.g. grass cutters unable to cut the grass due to snow coverage) the employer may be able to apply temporary “lay-off” or short time hours BUT they must have the contractual right to do so.  In such circumstances specific legal advice on ‘lay-off’/short time working should be obtained; 
• If the employer decides to close early, due to the weather, they are actually depriving employees from working.  In these circumstances, the rest of that day should be treated as paid leave of absence (and not part of the annual holiday entitlement); 
• Remember your Health and Safety obligations to ensure that you are providing a safe workplace; and
• Make sure you show your appreciation to those who do make it into work, despite the weather conditions.  Not just for getting in but for the fact they may have to do more work to cover for those that don’t.  A little acknowledgement goes a long way.

“TO GRIT OR NOT TO GRIT?”

DEALING WITH SNOWY / ICY CONDITIONS

It will come as no surprise to hear that we have recently advised a number of clients about clearing ice and snow from their premises – no surprise there then BUT in giving this advice we have detected that an old ‘urban myth’ is alive and well.  The ‘myth’ is that to do nothing to clear snow and ice reduces your liability in the event of someone slipping and injuring themselves because it is a natural phenomenon and people need to look out for themselves! This is a great example of muddled thinking.

We have even heard the argument – “Head Office have said don’t put down grit because of Health and Safety!!!”  Common sense indicates that slips are far less likely if pedestrian routes and particularly the busiest are treated and a few simple actions should not be outside what most employers would be able to cope with.  As with all safety matters, employers are required to take reasonably practicable measures or precautions to ensure health and safety at work. To argue that it was not reasonable to foresee that someone is likely to slip when walking on ice or snow is muddled thinking.

In fact, it is a legal requirement under two sections of the Health and Safety at Work etc. Act 1974:

• Section 2 (2)(d) – General duties of employers to their employees.
• Section 4 (2) – General duties of persons concerned with premises to persons other than their employees, 

In that the Employer, must take measures as is reasonable for the safe access to and egress from premises they control, that are safe and without risk.

So, What Should You Do…?

Ice, frost and snow 

As always, the start point is an appraisal of the risk which in turn will identify your required actions.  

Preparation:

Ensure you prepare ahead, have adequate arrangements, supplies, and equipment ready at the premises.

• Salt – Don’t wait until the day it freezes/snows.
• Snow Shovel available.
• Who is going to undertake the task?

The following points should help you focus on the key areas:

• Identify the outdoor areas most likely affected and that are used by pedestrians e.g. entrances, car parks, pedestrian walkways, steps, shortcuts, sloped areas, and areas constantly in the shade or wet.
• Monitor the actual and forecasted temperature and conditions underfoot.
• Act whenever freezing temperatures are forecast.
• Your actions should aim to prevent icy surfaces from forming and/or keeping pedestrians off slippery surfaces.  

This might include:

• Spreading salt/grit or similar on areas prone to be slippery in frosty, icy conditions.
• Consider temporary use of an insulating material on smaller areas overnight.
• Divert pedestrians to less slippery walkways and barrier off existing ones.
• Assign responsibility for spreading grit/salt or for actioning other appropriate precautionary measures such as warning signs, access barriers etc.

Salting (Gritting)

Salt can stop ice forming initially and cause existing ice or snow to melt. It is most effective when it is ground down, but this will take far longer on pedestrian areas than on roads.

Salting should be carried out when frost, ice or snow is forecast or when walkways are likely to be damp or wet and the floor temperatures are at, or below freezing. The best times to salt are early in evening before the frost settles and/or early in the morning before employees arrive. Salt doesn’t work instantly; it needs sufficient time to dissolve into the moisture on the floor so allow for this where you can.

Common Problems

• If you salt when it is raining heavily, the salt will be washed away, causing a problem if the rain then turns to snow.
• Compacted snow, which turns to ice, is more difficult to treat effectively with grit.
• ‘Dawn frost’ can occur on dry surfaces when early morning dew forms and freezes on impact with the cold surface. It can be difficult to predict when or where this condition will occur.