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Home working and common sense suggested

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Employers may be legally entitled to dock workers' pay if they stay at home because of snow and extreme weather, but such a course of action can be risky and cause resentment, according to guidance from Pinsent Masons, the law firm behind OUT-LAW.COM.

It says that employees are under a legal obligation to get to work and that companies could withhold pay from those that stay at home because of the weather or ask them to make up the time later. But this is not necessarily the wisest course of action, the guidance said.

"Employees have statutory protection against an unauthorised deduction being made from their wages without their consent and deducting pay could potentially be challenged as unlawful under these provisions," said advice to employers produced by employment law specialists at the firm.

"You should therefore assess whether not paying employees would be in the best interests of your business. It may be that the financial burden to the business of paying staff in these circumstances is outweighed by the benefits that such a gesture would have on staff morale and productivity in the long run – especially if the snowfall is particularly heavy and it is impossible to get into the office," it said.

The guidance said that companies cannot force employees unable to get to work to take that time as a holiday, but that workers with children had a statutory right to take time off when there is "an unexpected disruption to childcare", a category which might include the school closures seen this week across the UK.

"Strictly, the day would be unpaid but not all employers will take this approach," it said. "It is also important for employers to adopt a consistent approach to the policy adopted for employees without children."

Companies whose workers need to be outside must protect them in the cold weather. Though indoor workplaces must be at a temperature of 16 degrees Celsius or higher, there is no minimum temperature for outdoor work. There are other protections, though.

"There is no legal minimum outdoor working temperature so employers need to rely on thermal risk assessments. In very cold weather, outdoor workers face two major health problems: hypothermia and frostbite. There is therefore extensive HSE [Health and Safety Executive] guidance about protective clothing for cold weather, health issues and management guidelines," it said.

The guidance said that the best way for employers to reduce disruption caused by extreme weather events is to put in place the technologies and policies that would enable more of the workforce to operate from home.

"If employees are concerned that the conditions are not safe or if they are dependent on public transport systems that are badly affected, many employers take the view that employees should remain at home and do what work they can from there. This is becoming more feasible as many employees have Blackberry devices and, if not, then they can access their work email and office applications remotely via a laptop, home PC or mobile phone," it said.

"However, even though they are at home, employees need to be clear that they must still work as far as possible," said the guidance. "A home working policy could be helpful here making it clear that working from home is a privilege, not a right and that the employer will, if necessary, monitor output."

This view is echoed by human resources professional representative body the Chartered Institute of Personnel and Development (CIPD).

"Employers need to carefully consider opportunities and options available if the weather conditions do stop employees making it in," said CIPD organisation and resourcing advisor Rebecca Clarke. "Many companies that have put in place the technology and management practices to allow home working, reap the benefits at a time like this."

Clarke said that, like those whose workers must be outside, companies whose workers must drive face extra obligations.

"Where employees are required to drive for work, employers also have a health and safety duty to ensure drivers are allowed extra time to complete journeys and factor in alternative routes – and that they are not pressurised to complete any journeys made dangerously difficult by the weather," she said.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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