As the flood waters recede, legal questions remain for employers

Employment contracts may need altering if weather disruption is likely to recur.

This winter has seen unprecedented flood damage to homes and businesses, and widespread transport disruption. While the scale of the flooding is new, the legal implications that arise from it are becoming increasingly common.

Is it acceptable for an employee to take time off due to severe weather and what should an employer do if it cannot provide work because of flooding?

Absent employees

Being prevented by snow, flood or other climate conditions from attending work is not usually addressed as an acceptable form of absence (such as sickness or holiday) in employment contracts and will generally constitute unauthorised absence. This raises several questions.

Should employees absent because of the weather be paid?

Employees are not normally entitled to be paid for unauthorised weather-related absences unless their employment contract says otherwise or their employer decides that it wishes to do so.

Can I discipline or dismiss absent employees?

Whether it will be fair to discipline or dismiss employees for absences in such circumstances will depend on several factors such as:

• Was their absence genuinely caused by the weather?
• Was it reasonable not to attend work due to the weather?
• How long did the period of non-attendance last and what impact did this have on the employer?

Dismissing employees who were attempting to prevent their homes from being flooded is likely to be seen as unfair by a tribunal. However, if their absence continues regularly for this reason, it may justify their dismissal, particularly if they have been warned beforehand.

To help with such situations employers should have a clear adverse weather policy stating that: employees are expected to make all reasonable efforts to attend work; absence due to adverse weather needs to reported; and absence due to the weather is unpaid (if that is what the organisation’s policy is) and may lead to disciplinary action.

Employers unable to provide work In most cases employees who are ready, willing and able to work but who cannot because their employer is unable to provide work (for example, because the work premises are flooded) are entitled to be paid even though they may not work.

Can I lay off staff because of flooding?

Employment contracts that contain a lay-off clause enable an employer to tell employees to stay off work without pay (statutory guarantee payments will apply, however). Laying off employees without a clear contractual provision to this effect would be a breach of contract and potentially lead to successful constructive unfair dismissal claims. Employees laid off for more than four consecutive weeks, or six weeks in a period of 13 weeks, would be entitled to redundancy pay even with these provisions in their employment contracts.

What can employers that cannot provide work do?

It may be possible to require an employee to take annual leave but this is not straightforward. Most employment contracts require a minimum notice period to take holiday (as do the statutory rules on annual leave) and an employer must be careful not to breach its ‘trust and confidence’ duty (in other words, must not behave in a way that undermines the employment relationship).

To provide for such situations in the future, employers should consider:

• building in lay off provisions into their contractual terms and conditions in the event of weather-related disruption or shut down;
• reviewing their contractual provisions on requiring employees to take annual leave on short notice;
• establishing an emergency weather plan, specifying what work can be done from alternative work premises or from home; and
• building in greater flexibility into job roles so employees can carry out alternative duties (beyond their general duty of cooperation with their employer’s requests) in extreme weather situations.

Such provisions would have seemed overkill only a few years ago but, with extreme climate conditions predicted to be on the increase, addressing such issues now may save organisations considerable costs in the future.

This content is correct at time of publication