Snow Joke

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By NigelB | Tuesday, January 22, 2013, 12:17

With snow affecting parts of the region employers are counting the costs with many employees unable or in some cases unwilling to make it into work.

Coodes Solicitors' employment expert, Phil Sayers, examines the implications.

What exactly are the legal implications if an employee is unable to or unwilling to make it into work?  

Firstly employees do not have the right to be paid on 'snow days'.  

Many employers will make discretionary payments, but there is no legal entitlement to payment.  

Employers can require employees to take annual or unpaid leave in these circumstances.  

There is an argument that if employers have historically paid employees on snow days that this has, by custom and practice, become an implied right.  

However, we very rarely get prolonged periods of snow in the region the payment of an odd day is customary but for a period of several days would prove unsustainable.

What happens if an employee tells you they can't make it in and an employer compels them to do so, and they have an accident? 

If they have an accident, whether on foot or in the car, the employer is potentially negligent.

The employer can even be found negligent if an employee suffers an accident as a result of the weather carrying out their work.

In the case of Farrant v Essex County Council, the claimant successfully sued her employer for negligence when she fractured her wrist after slipping on ice she was gritting in a playground as part of her duties as a school caretaker.

It was argued that Essex CC should have carried out a risk assessment and provided Mrs Farrant with proper safety equipment under the Personal Protective Equipment Regulations. 

The council had expected her to carry out her own risk assessment, and she wore her own boots and gloves to do the job.

The Judge found in favour of Mrs Farrant, saying that although it was a "common sense" task, the whole point of risk assessments was to train an employee in how to do the job safely and to provide them with safe equipment, such as proper non-slip boots.

Essex CC argued that, even if they were at fault, Mrs Farrant should take some of the blame for the accident for not paying attention to the area she had salted.

The Judge said she was clearly treading carefully on the salt and she was in no way responsible for her accident.

What happens if you think an employee is swinging the lead?  

If you have a genuine belief they could make it in and did not then it is an unauthorised absence and the employee should be disciplined in accordance with disciplinary procedure.

What if an employee comes in and works over and above their contracted hours to cover for those who can't make it in?  

If they are salaried they are not entitled to be paid extra, but what incentive is there to come in and work extra if there is no reward?

 

If they are paid hourly they should receive overtime in accordance with their contractual rates of pay.

What if an employee thinks they can make it to work and slips on the pavement walking in?  

If the pavement is a council pavement, they may have a claim against the council.  

The council owes exactly the same duty of care to pedestrians as it does to motorists.  

If the employee slips on the steps up to the front door of work it is the responsibility of the employer as an occupier.  

This applies equally to members of the public and public access routes should be kept clear to avoid claims.

What should employers do to safeguard themselves?  

Have disaster recovery plans in place to ensure key personnel are contactable at all times whether remotely or not and make provision for people who genuinely cannot make it in to work from home.  

Your plan should ensure that at least a skeleton staff can make it to avoid a drop in client care levels.  

Ensure that where necessary you can use agency staff to fill gaps so that services run as seamlessly as possible.

Also have clear reporting procedures in place.  

Employees should know who to call and by what time.  

They should keep you posted if conditions change.  

Have clear procedures in place in respect of pay for leave and ensure they are applied consistently.

And a reminder for employees – if you are unable to make it to work due to snow and say you will work from home don't post pictures of your snowman on social media!

Phil Sayers, Coodes Solicitors, www.coodes.co.uk, 01872 246200

PR Cornwall

      

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