The end of the ‘snow day’?

It's rapidly approaching that time of year when a rare occurrence of snowfall results in a degree of travel chaos and the age old questions for employers around what they should do about employees unable or unwilling to brave their way through the snow and ice to get to their workstations.

The disruptions to peoples' lives and normal working patterns seen across the course of the COVID pandemic however have undoubtedly created a major shift around when, where, and how large swathes of the workforce carry out their daily duties.  Equally of course, schools have had to now been forced to become better prepared and able to react very rapidly to being able to deliver classes on-line where absolutely necessary.

Does this combination of factors mean that we've seen the end of the 'snow day'? - if not, then how do the changes and adjustments to working practices that we've seen over the course of the pandemic impact on that?

The starting point should really be to consider what the underlying legal position is across the range of potential scenarios:

What if the employer decides to close the place of work?

Sometimes severe adverse weather conditions can lead to the need for a complete closure of the normal workplace. In such instances (and assuming that the employee is unable to do the work at an alternative location), the default position is that employees are entitled to be paid in full for any hours they would have worked had the closure not taken place, unless there is a contractual right for the employee to be placed on temporary layoff.

If a place of work opens later or closes earlier than usual because of weather conditions, employees are also entitled to be paid for this time even if they have carried out less work than normal.

This includes circumstances where other essential staff such as line managers or staff who provide access to the building are unable to get to work but the employee is otherwise willing and available to work.

What if an employee is required to attend the workplace but cannot get there?

There will be many instances, as we have seen with certain essential workers during the pandemic, where employees are required to attend their place of work because they simply cannot complete their job from home.

If this is the case, then employees are expected to make every reasonable effort to get to work and if they cannot get into work, they must inform their employer as soon as possible.

Employers should consider how, and whether it is safe, for an employee to be expected to travel to work and should inform employees if they have decided that it is too unsafe to expect them to travel into work. Care should also be taken where an employee is refusing to attend on the basis that they genuinely believe it is unsafe for them to get to the workplace.

If employees are unable to arrive on time, their lateness does not have to be paid for as normal. However, the employer may wish to agree with the employee the opportunity to make up lost time to ensure their pay is not reduced.

If an employee is unable to attend the place of work (which the employer has been able to keep open and operational) due to adverse weather conditions, an employer is under no obligation to pay employees. However, it would be reasonable for an employer to consider suitable alternatives before deciding to withhold pay such as allowing the employee to work from another location, flexible working or using some of their holiday entitlement.

What if an employee is impacted by their child/ren school closure?

Employees have a statutory right to a reasonable amount of (unpaid) time off to deal with 'emergency' situations involving a dependant. This covers situations where there is a breakdown in care arrangements.

It is perhaps worth remembering in this regard that even though schools have become far more adept at delivering remote learning during the course of the pandemic, even if the child is learning remotely, a parent will likely not be able to simply leave them 'home alone'.

What about employees able to work from home?

For employees who can (or are still) working from home, it is unlikely that there will be any difficulties for them in working irrespective of what's going on with the weather outside (unless as above they end up unexpectedly having to care for a dependant). Therefore, allowing employees to work from home means they can continue to work and receive their normal salary despite bad weather disruption and workplace closures. With this in mind, employers should consider updating their policies towards indicating that in the face of severe unexpected travel disruption, employees will be expected/required to work from home where their role facilities that.

What about disruptions to travel which are not weather related?

During September and October, the country faced a fuel shortage which prevented many employees from getting to work (either on time, or at all) due to the lack of availability of fuel, and long queues at the pumps.

Whist that may hopefully be a 'one off' event, it naturally brings into sharp focus that adverse weather is not realistically the only potential cause of major traffic disruption, albeit that the same basic rules apply.

What should employers be doing?

Changes to working practices that have occurred during the course of the pandemic, alongside issues such as the recent fuel crisis, likely mean that existing 'adverse weather' policies that many organisations have in place are probably no longer as fit for purpose as they once were.

Even in spite of the changes in working practices caused by the pandemic however, taking into account such things as the fact that parents won’t be able to leave children at home on their own even if the children are engaging in remote learning, it's unlikely that we'll ever get to a point where 'snow days' are truly a thing of the past.

Rather than waiting until the snow starts to fall therefore, it would be a sensible idea for employers to look to dust off their adverse weather policy now and consider whether it requires updating to reflect the different world that we now find ourselves in.

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