Winter issues: Winter weather FAQs

Elizabeth Williamson of Osborne Clarke concludes a series of articles on winter issues affecting employers with some frequently asked questions about employers' rights and obligations in relation to winter weather conditions. Winter weather can make it difficult for employees to get to work and creates hazards at and around employers' premises. 

What do we do if our heating breaks down and employees complain that it is too cold to work and threaten to go home?

Regulation 7 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to ensure that a "reasonable" temperature is maintained in the workplace. According to the associated "Workplace health, safety and welfare - approved code of practice" (see the Workplace temperature page of the Health and Safety Executive website), the temperature should not fall below 16ºC in workplaces in which little strenuous manual work is performed. For workplaces in which work of a more physical nature is carried out, the minimum temperature should be 13ºC.This is a guideline only and maintaining these temperatures may not necessarily ensure "reasonable comfort", particularly where there are other factors affecting the working environment, such as air movement and humidity. Where the temperature does fall below the recommended minimum, employers should, where possible, allow employees to carry out their work elsewhere.

Employers should exercise caution if an employee complains that it is too cold to remain at work and threatens to go home, particularly if he or she is a designated health and safety representative. Employees are protected against being subjected to a detriment or dismissed for, for example: carrying out activities in connection with the prevention of health and safety risks at work; raising concerns about work circumstances that they reasonably believe are harmful or potentially harmful to health or safety; and, where they reasonably believe that there is a serious and imminent danger, taking action to protect themselves (which can include leaving the workplace) (see Employees subjected to detriment short of dismissal and Dismissed employees in the Employment implications section of the XpertHR employment law manual for more details).

Where employees threaten to leave the premises due to the workplace temperature, the employer will need to assess whether or not there is a genuine health and safety risk and if the employees are being reasonable in their assessment of that risk, before deciding what action to take. This is likely to depend on the temperature itself, the work being done and the length of the period during which there is no heating. Some employees may have a medical condition that exacerbates the problem, which should be taken into account. Employers should try to alleviate the problem by arranging alternative temporary forms of heating, providing warm drinks, and allowing employees to work from home where possible.

How can we reduce the negative impact on our business of bad winter weather?

Employers can reduce the negative impact of bad weather on their business by taking a number of practical steps to enable employees to carry on working and by introducing a policy that stipulates how they will deal with unforeseen absence due to adverse weather conditions (which could be incorporated into an existing absence policy). A clearly communicated policy can help to reduce conflict and confusion and ensure that employees are treated fairly and consistently.

Steps that employers can take include the following:

• Making clear what is expected from employees when bad weather makes it difficult for them to get to work. Employers can require employees to make reasonable efforts to get into work at the recognised start time by using alternative travel arrangements but should advise employees not to risk their safety.
• Making clear to employees the rules on notifying absence.
• Specifying whether or not employees will be paid for days when they are unable to get into work because of the weather. While this is likely to be controversial, it is better for employers to address this at the outset than have to deal with complaints when employees receive their payslips.
• Allowing employees to use their annual leave entitlement for days that they are unable to get to work, so that they do not suffer a reduction in pay and the employer does not suffer an overall reduction in time worked.
• Allowing employees to work flexible hours to make up for time lost.
• Arranging for employees to be able to work from home where possible.
• Making contingency plans in advance to cover the work of absent employees.
• Clarifying what parents should do if their children's schools close and they have no alternative means of childcare.
• Identifying employees who may have particular difficulties getting to work or who would suffer additional health and safety risks as a result of bad weather (for example employees with a disability) so that specific arrangements can be made to cover their work.

Do we have to pay employees who are late, or who do not turn up for work, due to travel difficulties caused by bad weather?

Employees are obliged, under their contract of employment, to be ready and willing to work. This applies even in extreme weather conditions. Therefore, employers are entitled to refuse to pay employees who do not make it into work because they are "snowed in" or because there is no public transport, and to make deductions from pay if employees are late for work and unable to work their contracted hours as a result.

However, employers that withhold pay may create resentment in employees who have been unable to get to work through no fault of their own, or who have struggled to get in and are late. Also, the financial burden of paying staff can be outweighed by the benefit that paying them as a gesture would have on morale and productivity in the longer term. Employers should bear in mind that many people are able to perform aspects of their job from home and could argue that they are, in fact, available for work there. In these circumstances, employees could argue that their employer's failure to pay constitutes a breach of contract. Further, if an employer is inconsistent in how it treats absent employees, it could also face claims for discrimination.

Employers could consider allowing employees to take annual leave to cover their absence. This ensures that the time is paid but is not lost by the employer. However, an employer will need to obtain its employees' agreement to this. Another option is to pay employees on condition that they make up the time at a later date. Employers that adopt this approach should ensure that employees do not exceed the 48-hour maximum working week where there is no opt-out agreement.

Can we discipline employees who are late, or who do not turn up for work, due to travel difficulties caused by bad weather?

Whether or not an employer can discipline employees who are late, or who fail to turn up for work, due to bad weather depends on the circumstances. If an employer believes that an employee is using the weather conditions as an excuse for absence or lateness, it should remind the employee of its policy on absenteeism and that it may take disciplinary action if it suspects that the employee is using the weather as a pretext for being unable to attend work. Depending on the circumstances, the employer could take disciplinary action, particularly for repeat offences, if an investigation reveals no genuine reason for the absence.

Employers should ensure that they treat staff consistently and fairly to avoid successful claims for discrimination and unfair dismissal. However, employers may need to make allowances for certain groups of staff. For example, disabled employees might find it more challenging to get into work. Employers are under a duty to make reasonable adjustments in relation to disabled employees who are disadvantaged in comparison with other staff. Arguably, this could include making allowances for disabled employees who will have difficulty attending work due to the weather.

Employees also have the right to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting dependants. This right is likely to apply to employees who need to take time off to look after children due to unexpected school closures or in relation to sudden disruption to care arrangements for dependants who rely on the employee for assistance (for example elderly parents), so that they can make alternative care arrangements. Employers should not dismiss or subject to a detriment employees who take reasonable time off because they need to care for dependants. To do so could result in a successful claim of unfair or constructive dismissal.

Employers have a responsibility for employees' health and safety and should not encourage or require employees to put themselves at risk to attend work. An employer that puts staff under undue pressure to attend work by threatening to take disciplinary action against employees who do not attend, when to do so would put them at risk, could be in breach of that responsibility.

Could we be liable if someone slips on ice and injures him- or herself on our premises?

Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 requires employers to ensure that, so far as is reasonably practicable, floors and traffic routes on work premises (both inside and outside) are free from obstruction and safe for use. What is "reasonably practicable" is a matter of common sense. However, it will include ensuring that all walkways and stairs are free from any substance that may cause a person to slip, trip or fall. This extends to clearing snow and ice from the premises. However, contrary to popular belief, an employer will not automatically be liable if a worker injures him- or herself on the premises due to extreme weather conditions - both employers and employees have a duty to have regard to health and safety in the workplace.

To defend a claim for injury sustained following a slip on ice, the employer will need to be able to show that it carried out a risk assessment and removed or minimised identified dangers. Therefore, adverse weather conditions should be monitored in advance and employers should have systems in place to organise the application of salt or grit to treat snow-ridden, icy or frozen surfaces or areas under their control. It is also crucial that suitable records are kept of these assessments.

As an occupier of premises an employer also has a duty under the Occupiers' Liability Act 1957 to protect visitors from injury arising from foreseeable risks. Under s.2 of the Act, the duty is to "take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there". However, this is unlikely to require anything further than the action that an employer will have taken to ensure the safety of its employees.

Could we be liable for ice-related accidents in our car park?

Employers are required to ensure that, so far as is reasonably practicable, traffic routes on work premises are safe for use (see the previous question). This extends to an employer's car park. As an occupier of premises, the employer also owes a duty to employees and visitors to take reasonable care to ensure that they are reasonably safe on the premises. Therefore, employers should undertake an assessment of the nature of any hazards in the car park and the degree of risk that they pose. The question of liability for snow and ice relates purely to whether or not the employer has acted reasonably.

Employers should try to ensure that their car parks and walkways to the premises are "reasonably" free of ice and snow. However, an employer that has attempted to clear snow and ice will not necessarily be free from liability under the Occupiers' Liability Act 1957. Nor will the fact that it attempted to clear snow and ice, but failed, necessarily imply liability. It will depend on whether or not its efforts were reasonable. This will, to some extent, depend on the size and resources of the employer. Employees and visitors to premises can also be expected to exercise some degree of caution.

Once the snow and ice has thawed, employers should carry out a further inspection of car parks and pathways as ice can affect the fabric of the road surface, causing a defect that was not there previously.

Could we be liable if an employee slips on the pavement outside our premises?

An employer is unlikely to be liable if an employee slips on ice on a pavement outside its premises. Where the pavement area concerned is owned or controlled by the local authority or the Highways Agency, this body will have a duty to maintain it and may be liable for accidents caused by icy conditions. Whether or not the pavement outside an employer's premises is gritted will depend on the resources of the relevant public body.

Employers may be liable for claims where they failed to act reasonably to ensure the safety of employees and visitors on their own premises (see the previous two questions). However, there is no statutory duty on employers to clear and grit pavements outside their premises against snow and ice. If an employer clears ice or snow from the highway there is a risk that it may be held liable for accidents that happen as a result. Employers should not sweep snow on to public property as it is a public nuisance to block the pavement. There is a common law duty of care, of which an employer may be in breach, if it negligently makes a shoddy attempt at clearing snow on public property and creates a danger or nuisance in another area.

The next topic of the week article will, subject to the timing of the Government's response to its recent consultation, be the first in a new series on the abolition of the default retirement age and will be published on 10 January.

Elizabeth Williamson (elizabeth.williamson@osborneclarke.com) is a solicitor in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.