Over 2,000 fuel tanker drivers have voted in favour of strike action; although dates for the strikes have not been set and talks continue at ACAS, many businesses will be affected if they go ahead. Where do you stand as an employer when staff don’t turn up to work?
The impact on businesses will include:
- Shortage of work owing to interruption of supplies or distribution arrangements
- Staff shortages because people cannot get into work
- Indirect impacts, such as school closures, causing knock-on effects.
NatWest's Mentor HR service offers the following guidance:
Q. Do I have to pay employees who are unable to get themselves into work due to shortage of fuel?
No. If your employees are unable to get themselves into work (for whatever reason) then you are not legally obliged to pay them. However, you could consider alternatives, such as temporary home working or asking staff to take part of their paid holiday entitlement.
Q. Could I take disciplinary action against staff who don’t turn up for work?
A reasonable employer would normally count such absence as "authorised absence", if the employee has phoned in to inform the employer that he/she is unable to attend work, and so it is not a disciplinary matter.
Employers also need to bear in mind that different employees may have different circumstances - perhaps a long commute or living in a rural area with no alternative but to use a private car to get to work. For this reason it is impossible to make a general rule about taking disciplinary action against those who do not get into work just because some employees do make it into work.
However, disciplinary action might be appropriate if you have good reason to believe an employee is being untruthful about shortage of fuel being the reason for not attending work, or to reinforce the message that absence notification procedures should be followed to avoid business disruption.
Q. What if employees ask to take time off as sick leave if they can’t get to work?
You might have staff calling in “sick” when the reality is that they cannot get in to work owing to shortage of fuel. This might particularly be a problem if your business operates a generous sick pay scheme which means staff are paid during short-term sickness absence.
You should check whether you have policies in place that allow you to require additional evidence of genuine illness (such as a doctor’s note) in cases of doubt.
Where there is evidence that the employee is misleading you about the cause of his or her absence, you can of course take disciplinary action.
Q. A member of my staff could get to work but has to stay at home because her child’s school is closed owing to staff shortages there. What are my legal obligations?
Although this is a “knock-on” impact of the fuel strike, and is not the fault of either you or your employee, there is no obligation to pay staff who are absent on this basis.
The law gives all employees the right to unpaid "time off for dependants", which would apply in this situation. Such time off should be no longer than what is required to deal with the immediate emergency - normally one or two days would be appropriate, but the length of time off very much depends on the employee’s individual circumstances.
Where the strikes cause lengthy school closures, there is no definite rule that says parents have the "right" to time off work to look after children. Some will find it easier than others to make other arrangements - perhaps by using relatives to look after their children.
Employers must act reasonably, and it is not generally advisable to pursue disciplinary action in cases where an employee's absence is caused by a school closure.
Q. My business supplies have dried up and I can’t find enough work for everyone to do. Do I have to pay my staff if I cannot provide them with any work?
In general - yes you do, and at their normal rate of pay.
In some cases, employees can be "laid off" without normal pay if there is a specific term in their contract allowing the employer to do this. When employees are laid off in this way, they are entitled to a statutory payment from the employer called a "Guarantee Payment". The current rate is a maximum of £23.50 per day.
Payment is limited to a maximum of five days in any period of three months. An employee must have completed one month's continuous employment in order to qualify for a Guarantee Payment. On days on which a Guarantee Payment is not payable, employees may be able to claim Jobseekers' Allowance and employees should contact their local Jobcentre to see if they qualify.
Q. Can I make staff take holidays from their annual holiday entitlement if they don't turn up for work?
You could only insist on this if you have a condition in employees' contracts of employment allowing you to do so.
However, although you can’t impose it, you can do this if both you and the employee agree.
Q. Can I ask staff to work from home in this sort of situation?
Working from home is much more common than it was even five or six years ago, thanks to new technology. Some employers have staff who are permanently home-based.
However, the issues are more complex with staff who normally work at the employer's premises, not least because not all work is suitable for home-working.
In the very short term, it is likely to be reasonable to ask staff who can do some work from home to do so - for example if they have a laptop computer or telephone and are able to work remotely. Equally, if an employee asks to work from home for a few days, this might be a reasonable request. In this way, employees would avoid losing pay for days they cannot get in to work.
But in many cases, people who are not regular home-workers already are unlikely to have the infrastructure available to allow them to work efficiently or safely - such things as internet connections, desk space, and material to work on. Employers also need to consider the health, safety and security implications of having staff working at home, as well as supervision arrangements.
Q. Is there anything I can do to prepare for the strike days?
The best advice is to accept that the strikes will cause genuine difficulties for some employees and disruption to your business, but to minimise this by preparing for the strike days in advance.
- Be aware that some workers may need time off for childcare and plan accordingly
- Consider giving employees the choice of taking holiday or Time Off for Dependants on the strike days
- If you need to relax your rules on advance booking of holidays or the number of staff allowed off at one time, make a clear decision on this and communicate to your staff that it is a “one-off”
- Consider whether temporary flexible working arrangements, such as some home-working, could assist.
NatWest's Mentor Employment Law Service can be contacted [free] on 0800 634 7004
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