With commuters in London and the South East crippled by train strikes with the prospect of more to come in early 2017, it raises issues about where employers stand if their staff can’t get to work.
Around 300,000 people use Southern Rail every day – many to commute to jobs in the capital from Surrey and Sussex. With many people struggling to make their daily journey due to the dispute, one of our Employment lawyers Julia Fitzsimmons has this advice for businesses:
The key point is to have a strategy in place to cover four main points for a scenario like this. You need to look at whether or not to pay those who can’t get to work, if home working arrangements are suitable, whether there is an alternative workplace and how to contact employees during any absence due to strike action.
By far the most difficult item to cover in any plan is whether or not employees should be paid.
Is there a term in your contract or a term incorporated via a staff handbook, any collective agreement or custom or practice that sets out how absences due to strike action or, indeed, adverse weather, should be covered?
It’s often unlikely so most employers make ad hoc decisions but a clear strategy will enable you and your staff to plan ahead.
Different types of workers may well be treated differently with hourly paid workers or those with no guaranteed hours usually not being paid. If they don’t turn up for work then they don’t get paid.
With salaried staff, the position is less clear. There are many supporters in legal firms and, indeed ACAS, that say if a worker has not turned up for whatever reason then they’re not “ready” for work and so should not be paid.
But there is a lack of case law in this area and there are strong arguments for employees to continue to be paid.
Employers may wish to look at how employees have behaved in the past and see what efforts have been made in order to contact the offices, plan for any day of industrial action and mitigate losses the employer may suffer. If absence is unavoidable, through no fault of the employee, then there is also a good argument that they should continue to be paid.
This is a wise move as it provides good employee relations, fosters a flexible approach between employer and employee with staff then more willing to work flexibly for the benefit of the business in the future, and it’s likely to reduce any abuse of the sick pay policy or sick leave.
With the majority of office-based employees able to undertake some form of work either at home or at an alternative workplace, the main concern may be those working on site in production, manufacturing or site specific roles or in caring or teaching.
The employer may need to agree that the time off will be paid but that employees will “bank” the time and work unpaid when needed by the business at a later date.