Snow day- S’no pay?

What is the employment law position for staff who are snowed in?

Forecast this week is for snow, and for tricky employment law scenarios when staff cannot make it in to work. What does the law say in these situations- are employees entitled to be paid? We were delighted to be asked on to STV’s Scotland Tonight last week to address this question.

Adverse weather and adverse headlines

During the severe weather last year, headlines were generated when a local council indicated that staff would not be paid if they could not make it in to work. This position was subsequently reversed but not before it filled many column inches. More recently an updated council policy has reportedly asked staff to retain holidays to cover circumstances where adverse weather prevents them from being able to work reopening the debate about how employers should approach this situation and what employees are entitled to by law.

Should employees be paid if they cannot get to work?

Generally speaking an employer cannot dock pay without an employee’s prior agreement but is it correct to say that employees have a right to be paid where they have not attended work? There is some legal uncertainty surrounding this question. The first place to look is the contract of employment and any other relevant agreement between employer and employee. The case law talks about staff being ‘ready and willing’ to work and generally, if a salaried employee is ‘ready and willing’ it is expected that they would be paid. Equally, if an employee is not ‘ready’ it is generally thought that there is no right to be paid. In a snow day situation, the employee might say they are ready and willing but prevented from working by an extraneous factor- what then? There is case law out there which suggests that employees may have a right to be paid in certain circumstances where they are prevented from working. Just like the weather; the law can be grey sometimes too!

Can employees be told to use annual leave to cover snow days?

There are some practical difficulties with this type of arrangement- weather is unpredictable, how many days annual leave should be kept back? What if some employees have retained holidays and others have not? There are also legal difficulties, whilst an employer can insist that employees utilise holiday leave on specific dates but this requires the service of notice periods- these requirements may be difficult to satisfy.

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What can employers do if staff are unable to work on a snow day?

Taking the local authority example explained above, there is merit in addressing the question in advance rather than taking a reactive approach and generally speaking having a bad weather policy in place is a good idea. Employers must be mindful of the health and safety of employees and balance that with the need for business continuity. Employers may wish to consider flexible working arrangements, closure of the place of business, allowing staff to work from alternative locations or perhaps providing a limited amount of paid leave to all staff.

It is worth noting that in Scotland, following the ‘Beast from the East’ the Scottish Government released a Severe Weather Fair Work Charter which provides non-binding guidance on how employers should approach these issues.