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Footage of rescue boats in the centre of York, and of waters raging along Kirkstall Road in Leeds, are some of the images that have haunted the recent Christmas break. But when the upset of flooded homes, ruined Christmas presents and temporary soup kitchens have subsided, where does this leave employers?
Flooding, snow and other adverse weather conditions cause headaches for employers. What happens when employees can’t get into work as a result of flooded roads or train lines? Where employees have no guaranteed hours of work, they aren’t entitled to be paid if they don’t turn up to work. However, the position is less clear when employees are salaried or have guaranteed hours. One view is that employees who can’t get to work aren’t ready and available for work and so shouldn’t be paid, but some cases suggest that wages should be paid where absence is unavoidable. Some contracts of employment or Staff Handbooks will clarify the position, but if not it is important to look at how the employer has responded in previous situations. It’s bad for staff morale to refuse to pay those who can’t get to work through no fault of their own – but on the other hand, those who’ve made a superhuman effort to get in may resent those who’ve been paid when perhaps, with a little more determination, they could have made it.
Employers can try to limit their exposure by instructing employees to work from home, where possible, or to work from an alternative office. This is the time when a well-thought-out disaster recovery plan comes into its own, with agreed methods of contacting staff and pre-arranged methods of accessing work IT systems remotely.
Where employees have to stay off work to look after their children in an emergency, for example when flooding closes the local school, the situation is clear – they’re entitled to take a reasonable amount of unpaid time off work. However, this right is not open-ended, and only lasts until alternative child care arrangements can be made. Some employers are prepared to offer to pay staff for a limited period in such situations, but this is not a requirement. Employees may request that they use up paid holiday at short notice during such a period, or that they’re paid and then make the time up at a later date. It’s fine for employers to agree to these requests, but they should beware of insisting that employees convert this time off into holiday or work the time back, as this would be classed under the law as subjecting the employees to a detriment for asserting their statutory rights.
What about the York pub and the factory on Kirkstall Road that had to close due to flooding? Salaried employees, or those with guaranteed hours, are entitled to be paid if they’re ready and willing to work. However, employers who had the foresight to include a lay-off clause in their employment contracts can tell their employees to stay at home. All that they’re required to pay is a daily Statutory Guarantee Payment of £26 for up to five days in any three month period. If the lay-off lasts for four consecutive weeks, employees are entitled to terminate their employment and claim a statutory redundancy payment.
Employers should take care before accepting offers from well-meaning employees to literally “man the pumps” and come in to work to help with the clear-up. Premises that have been flooded may well be contaminated with sewage, or may be structurally unsafe. A full risk assessment should be carried out before allowing employees onto the premises and, if necessary, the clear-up should be left to the professionals.
Employers should consider putting in place policies or contract amendments that clarify the approach that they will take in the face of such disasters.
*Free policy offer expires on 31 January 2016 and is not open to HR consultancies.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.