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ABSENCE MAKES THE HEART GROW COLDER?

PUBLISHED: 16:24 08 February 2013 | UPDATED: 22:09 26 February 2013

It seems appropriate at this time of year to look at absence, as bad roads and flu take their toll on the workforce. A misconception that is common this time of year is that if we get some snow, employees who don't make it in still have to be paid.


It seems appropriate at this time of year to look at absence, as bad roads and flu take their toll on the workforce. A misconception that is common this time of year is that if we get some snow, employees who dont make it in still have to be paid. They dont.

Any given business owner will, if asked, be able to recount a time when they have made it to work through poor conditions only to find that some of the staff that live closer have been unable to make it. Its common this time of year. I can hear clients now saying Its not like we live in Siberia! and I made it in, so why cant they? This is not to say that most employers experience this, in fact most are impressed by the efforts some people make, but then they never call me about such employees.

I want to make something clear. That is that many employers feel it right to pay employees when they cannot make it in. Its their money and I admire the paternal instinct. However, some labour under the impression that they are obliged to pay if an employee cannot make it to work. I have to say that as a general rule this is not the case. The fact is that there may be many events which occur which stop someone getting to work. The car breaks down, the roads are closed or flooded, the electrician is coming, the goldfish has died and many others. The employer doesnt normally feel obliged to pay on such occasions, so why is snow and ice different? Well, its not. If someone cannot get to work, there is nothing in law that says they should be paid. Even salaried staff.

There are exceptions. Some sales or technology focussed staff may work from home for example. The fact is that if they do the work you have to pay. Bad weather can close schools and leave parents with no childcare and unable to get to work. While on this latter example you dont have to pay wages, you do have to allow time off to arrange child care. There is no obligation to pay, but the time off must be permitted.

It is true to say that most of us have more sympathy with someone faced with schools closed and childcare problems because we understand them. Its the road conditions which seem to get the employer a little more frosty. This is especially the case where an employee lives near another employee. The one gets in and the other doesnt. This does suggest that the missing employee could perhaps have tried harder, so short of docking pay, can the employer take more punitive actions? Technically yes, but the issue is one of proof. There are some who say there is an issue of morality too, forcing nervous drivers onto dangerous roads must be a bad thing. The fact is that if an employer can prove reasonably that the employee could easily have made it to work, then there is a case to answer although dismissal may be seen as a little harsh.

Usually, when employees realise there will be no pay, human nature dictates that they will try harder. None of us however would advocate forcing people to risk life and limb on icy roads, and most employers would not want to do this anyway. Its a good idea to let people take holiday entitlement if they cant afford to miss a day, but cant face the journey in.

Trula Brunsdon is an Associate at Sherbornes Solicitors LLP. The Cotswolds specialist employment law firm.


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