Legal
In the aftermath of Storm Emma, we answer five common questions from employers on the impact of severe weather conditions on the employer/ employee relationship.
1. My office was closed during severe weather conditions. Do I have to pay my staff for the days on which my business was shut?
Yes. An employer who closes a usual place of business prevents an employee from performing the employment contract – technically you are in breach of contract and it follows that an employee should not be at a loss as a result
2. My office was open for business during the severe weather conditions but my employees could not get to work, am I obliged to pay them for the days not worked
Unless specifically agreed in the employment contract or dealt with in an Adverse Weather Conditions Policy to the contrary, you do not have to pay your employee for days on which s/he could not attend work due to adverse weather conditions if the office was open for business during that time. For the same reason as outlined above it is the employee who is in breach of the employment contract and the employer should not therefore be at a loss as a result.
Your options are to agree with the employee to work from home (but see below re Heath and Safety obligations), require him/her to make up the lost hours through working overtime – usually during the following month-, assign a day or part thereof to annual leave, grant a day or part thereof authorised leave with or without pay or a combination of any of these.
However deducting pay may not be the best approach for an employer to deal with loss suffered as a result of adverse weather conditions. An employer would be well advised to consider other ways in which to recover the loss suffered such as agreeing with the employee to make up the time the following week or to assign the day to authorised leave or a combination of both. Staff morale and your reputation as a good employer may benefit in the long run if you pay staff on a snow day.
3. Some of my employees could get to work during the bad weather but as crèches and schools were closed, others were unable to attend work due to lack of child care arrangements. What are my options in this situation?
This situation is usually treated separately to inability to access work due to weather conditions as legislation specifically dealing with this situation is in place under Parental Leave Acts 1998 – 2006.
A parent of a child has the right to take a reasonable amount of time off where it is necessary to deal with the unexpected disruption, termination or breakdown of arrangements to care for the child. An employee finding himself/ herself in this scenario must explain the reason for the length of his/her absence to an employer as soon as reasonably practicable. Unless specifically agreed in an employment contract or contained in a policy, you do not need to pay your employee for this day.
However as with answer no. 2 above this is one situation where the letter of the law says one thing and common sense dictates another. There is a value to having strong staff morale and a reputation as a good employer and it might therefore be worth assigning authorised leave with pay to the snow day. The employee is protected from suffering any detriment for taking the time off and cannot be the subject of disciplinary action as a result. The child must be under the age of 8. Further details on unpaid parental leave are available on the Workplace Relations Commission Guide to the Parental Leave Acts.
4. How can I best deal with the impact of Adverse Weather Conditions on my business in the future?
The best way to deal with the impact of adverse weather conditions on your business is to have a plan in place to ensure the critical dependencies of your business are met during the relevant period in a way which does not pose a risk to the health and safety of your employees. The Department of Jobs and Enterprise has issued a Business Continuity Planning in Severe Weather Conditions Checklist which offers useful tips to business owners to follow in such circumstances.
In addition, as part of a Business Continuity Plan your organisation should have an Adverse Weather Conditions policy in place which:-
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Acknowledges that an employer has a duty of care to ensure that employees do not risk their health and safety attending work during extreme weather conditions;
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Confirms a general expectation that every staff member will make every reasonable effort to get to work;
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Sets out a general obligation on staff members to report inability to attend and the reasons for same specifically referring to usual mode of transport and lack of available alternatives by way of public transport or otherwise to a person of suitable authority within your organisation as soon as reasonably practicable;
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Outlines the options available to the staff member who has been unable to attend work due to extreme weather or other circumstances outside his/her control (ie to work from home, requirement to work overtime, usually during the following month, surrender a day or part thereof to annual leave, elect to have a day’s authorised leave with pay, overtime or a combination of all perhaps).
As with any policy, it should be communicated to the workforce and, if necessary, training should be provided to those who will be handling the day to day aspects of weather disruption.
If an employer has reason to believe that an employee is using the weather or other event as a convenient excuse, the employer can choose to investigate the matter and take disciplinary action if necessary.
5. The nature of my business requires employees to work during adverse weather conditions. How can I best deal with this?
In this day and age, many jobs can be done from home, and employees who frequently work at home should be encouraged to do so when bad weather approaches.
However, employers need to be aware that asking an employee to work from home during adverse weather conditions when a requirement to do so is not included in his/her contract of employment, constitutes a unilateral variation of the contract which requires advance consultation with the staff member. Therefore technically speaking if you have not agreed this arrangement with the employee in advance of the snow day, an employee is not obliged to work from home.
Employers should also consider the health and safety aspects of homeworking before imposing such a requirement: some employees’ homes will simply not be set up to be turned into a temporary workplace. Even when employees work from home, an employer still owes that employee a duty of care to ensure a safe place of work exists.
6. During extreme weather conditions, I find it difficult to keep a moderate temperature in the office. Is there a minimum and/or maximum temperature required for a workplace?
There is no prescribed temperature as ‘too hot’ under current rules but generally an employer has an obligation to ensure a safe place of work for its employees. The Guide to Safety, Health and Welfare at Work (General Application) Regulations 2007 acknowledges that for most people an acceptable temperature for office work lies between 18C and 23C.
Notwithstanding the above, a minimum temperature of 17.5 C for the first hour of work has been set by section 7 of the Guide to Safety, Health and Welfare at Work (General Application) Regulations 2007 and 16 C for the hours after that in a sedentary workplace environment.
If you would like to comment or have a query in respect of any aspect of the within article or if you would like us to draft an appropriate Adverse Weather Conditions Policy for your employment contracts contact deirdre@amoryssolicitors.com or your usual contact at Amorys. Telephone 00353 1 213 59 40.