News & Publications - Employment
In brief
26th Jan 2010
If the weather outside is frightful…
Dealing with employees who cannot get to work because of the weather
The weather has long been a British obsession and the prolonged snow and ice this winter (and the threat of more to come) has been a real headache for employers. Icy roads and disruption to public transport has meant many employees have been unable to get to work. The bad weather has had a double impact on employers with not only higher than normal staff absence but clients and customers are reluctant to go out (and spend).
Employers might be willing to grant their employees the occasional day off for bad weather but they may not be able to afford to be as generous for longer periods of absence. There are a number of options available for dealing with the disruption to the workplace caused by bad weather.
Provided the fault does not lie with the employer, they are not usually obliged to pay an employee if they cannot perform the work that they are contracted to do because they cannot get to work. It is the responsibility of the employee except where there is a contractual provision to the contrary (i.e. if the employer is contractually obliged to transport employees to the workplace).
However, there may be difficulties in deducting a day’s pay if there is no contractual provision for making a deduction from wages and the employee does not consent. Such a deduction risks being an authorised deduction for which an employee can bring a claim requiring the employer to reimburse the employee. Many employers may therefore decide to allow an occasional day’s paid absence due to poor weather rather than risk creating more problems by seeking to dock pay.
Instead of losing a day’s pay, employers could require employees to use their holiday entitlement to cover any absence due to weather. Employers may be able to specify when employers take their leave under their contracts. If they have to rely on the Working Time Regulations to specify when they must use holiday, employers should bear in mind that they will need to give twice as much notice as the number of days leave required which may be impractical.
Employees also have a statutory right to unpaid time off to deal with emergency situations regarding their dependents. The need to make alternative arrangements for childcare with the school closures due to bad weather would count as an emergency situation. However, this right is limited to the time off that is necessary to deal with the emergency (i.e. to make alternative childcare arrangements). Employees are expected to make alternative arrangements to cover the continued closure and come in to work (assuming the weather has improved).
Alternatively staff could be required to make up any time lost by working extra hours at a later date or to work from home if their work makes this possible. Where employees can work from home, it is worth bearing this in mind and making alternative arrangements in advance for them to do so. Health and safety assessments of the home work area should be considered especially if home working is to become a regular occurrence.
If the employer closes the workplace due to bad weather, unless advance notice to take holiday is given, the employees are available and willing to work and so are entitled to be paid as normal. Where workers are paid on an “as and when” basis and an employer closes, then there is no right to payment.
The health and safety implications of any bad weather should not be overlooked. This applies not only for employees who are expected to travel as part of their work but also the health and safety implications when employees struggle to travel into work when the public authorities are advising people not to travel. Employers owe their employees a duty of care and should therefore be careful not to pressurise them into taking unnecessary risks in travelling to work.
Rather than leaving matters to fate (and the vagaries of the British weather), employers should consider introducing a “bad weather” policy so that employees are aware of how absence is likely to be treated and the alternatives for working away from the workplace.
ACAS launches new pre claim conciliation service
Up until now ACAS only becomes involved in a dispute after a tribunal claim has been filed. The parties receive a letter from the conciliator assigned to conciliate the matter. The Dispute Resolution Review published in 2007 highlighted the advantages for all concerned in settling disputes to avoid litigation. As a result, ACAS has expanded its Pre Claim Conciliation Service. Initially, the service was mainly restricted to unfair dismissal and discrimination cases, but from October 2009 the service has been extended to all jurisdictions for which ACAS has the power to conciliate.
So far there have been over 6000 pre-claim conciliation referrals to ACAS conciliators, with around 40% of them being resolved and quickly - the median duration of cases for Fast Track claims (mainly wages) is 10 days, for Standard Track (primarily unfair dismissal) 17 days and for Open Track (discrimination) 19 days.
Either party can initiate this service by contacting ACAS. If
- efforts to resolve a dispute have been attempted but ended in failure;
- the dispute is likely to end in a formal Tribunal claim; and,
- there appears to be an entitlement to bring such a claim;
Summary details of the dispute will be passed to a conciliator who will quickly contact the parties to offer ACAS assistance. If the dispute remains unresolved after ACAS pre conciliation, the claim can still go ahead to the tribunal and the parties can make use of ACAS assistance again after proceedings have been issued.
Compensation limits
Unusually the annual review of Employment Tribunal compensation limits will reduce the award limits. From 1 February 2010 the maximum possible compensation award for unfair dismissal drops from £66,200 to £65,300. A week’s pay – for the purposes of calculating the basic award and for redundancy pay purposes – remains at £380 (having previously been increased in October 2009). The fall is due to the measures for inflation falling into negative figures at the time of calculating the changes to the compensation limits.
Retirement age
The government is currently consulting on the future of the default retirement age of 65. Currently an employer may compulsorily retire employees on reaching the default retirement age provided the employee’s contract does not provide for a later retirement date and the correct procedure is followed. On 25 January 2010 the Equality and Human Rights Commission announced proposals to abolish the default retirement age. To support their proposals the ECHR has released research showing that 24% of men and 64% of women say they plan to keep working beyond the state pension age.
In October last year the government brought forward a planned review of the default retirement age from 2011 to 2010. The review will be conducted jointly by the Department for Business, Innovation and Skills and the Department for Work and Pensions. Both employers and employees will be consulted on whether the default retirement age of 65 remains appropriate and necessary. It remains to be seen how the review will be affected by a possible change of government in May.
Long term impairments for disability purposes
In order for a Claimant to claim unlawful discrimination under the Disability Discrimination Act 1995, they must establish that they have a disability. A person has a 'disability' for the purposes of the Act if they have a physical or mental impairment which has a substantial and long-term adverse impact on their ability to carry out “normal day-to-day activities.” The Employment Appeal Tribunal has handed down a judgment (Patel –v- Oldham Council) on assessing the long term adverse impact of an illness or condition.
A claimant may have a condition or illness that in isolation may not be “long term” (i.e. lasts or is expected to last for at least 12 months). However, where a further illness or condition develops from the original illness or condition, the effect of the original and the subsequent impairment should be considered. It may be possible that the combined effect of the two conditions is a “long term” adverse impact. Mr Patel suffered from back pain which then developed into leg pain, a secondary condition. The EAT found that the original Tribunal was wrong to treat the duration of each condition separately. They should have considered whether the secondary pain had developed from the original condition and if so, considered whether the combined impact was long term.
Common Sense for Dress Codes
Standards of dress and appearance required by employers have been a surprisingly contentious area. Dress codes have previously been challenged on various grounds, such as religious discrimination (where an employee was prevented from wearing a crucifix) and that they are contrary to the European Convention on Human Rights (for inhibiting freedom of expression).
In the case of Dansie –v- Metropolitan Police, the Police’s dress code and its enforcement was challenged on the grounds of sex discrimination and sexual harassment.
The dress code stated that the standard of dress should be “smart, fit for purpose and portray a favourable impression of the service”.
There was a separate Managers’ Guide, which stated “hair must be neat, not allowed to cover the ears and…worn above the collar. For safety reasons, ponytails are not permitted and long hair must be neatly and securely fastened up and worn relatively close to the head”.
Mr. Dansie was a male recruit, who reported for training with shoulder-length hair, albeit slicked back and secured in a bun. He was told to have his hair cut and threatened with disciplinary action if he did not comply. It was accepted by the Police Force that a female recruit, in similar circumstances, would not have been required to have her hair cut.
The Employment Appeal Tribunal confirmed a pragmatic approach should be applied to dress codes. When considering whether there was less favourable treatment of an employee through the employer’s dress code, it was necessary to look at the code as a whole and not just individual rules. Different treatment between the sexes on a particular aspect of appearance did not necessarily amount to more favourable treatment of one sex over the other, if the overall code was balanced.
This decision reflects a common sense approach to be taken towards dress codes. Whilst different requirements may be applied for men and women, as long as they are gender-neutral and reflect contemporary standards of appearance, based on conventional dress, there is no issue of discrimination between the sexes. An employer should also ensure that any dress code is applied consistently between both sexes, to avoid any claim for less favourable treatment in its enforcement.
Where specific standards of dress or appearance are required, it is advisable for an employer to set this out clearly in a dress code, identifying the specific standards of appearance that are required for the employer’s organisation. It is also advisable to ensure that those who are charged with enforcing dress codes apply the same standards to all employees.