Over the last number of years, the increasingly changing weather patterns have had an adverse effect on the ability of businesses in Ireland to operate, and consequently, the ability of employees to report to work. In general, there is no legal requirement for an employer to pay an employee if they cannot attend work because of difficult or extreme weather. The payment of employees during extreme weather should, in general, be governed by the company handbook and/or policy and procedure manual. Employers are generally encouraged to take a holistic view in addressing this issue, balancing commercial concerns with the health, safety and welfare of employees, into consideration.
A recent case that came before the Labour Court under the Industrial Relations Act, 1990, addressed this issue. The trade union ‘Mandate’ referred a dispute involving Marks & Spencer Cork, to the Labour Court, having failed to reach conciliation through the auspices of the Workplace Relations Commission.
The employees concerned, totaling 13 in number, argued that they were unable to report to work during the ‘Storm Emma’ period, heeding the requests made by the National Emergency Coordination Group and various other government bodies, to stay at home and only take any necessary or emergency journeys. Those same employees, apparently contacted the store management, to inform them that they would not be able to work due to the adverse weather conditions. The employees asserted that they had complied with the Marks & Spencer Management of Attendance Policy, which makes provision for an absence reporting procedure, if an employee is unable to attend work, for any reason. They asserted that they had acted reasonably, and consequently, the company acted unfairly, by failing to pay them for any part of their shift, for which they had not reported. The employees pointed out that, in any event, the store closed at 11 a.m., due to the adverse working conditions, and this had not been taken into account by Marks & Spencer.
Marks & Spencer Response
Marks & Spencer responded that it needed to be fair to the hundreds of other employees who came to work on the very same morning concerned, and worked until their respective stores closed. They pointed out that those employees who were not available to attend, were given a number of options to choose from, within which they could make up for the lost hours. Marks & Spencer pointed out that these arrangements had been in place for a number of years, and had generally been acceptable to all. They further pointed out that they pay all employees a month’s pay in advance, and that all staff were paid in full as normal during the adverse weather period concerned, and at no point did anybody suffer as a consequence.
The Labour Court
The Labour Court accepted that a number of employers had cause to consider their own adverse weather policies and procedures, under the same conditions that arose as a consequence of ‘Storm Emma’ during the period of February and March of 2018. The Labour Court said that it set a high premium upon an employer, in such circumstances, treating all of its employees in a consistent manner. The Labour Court went on to say that Marks & Spencer had submitted that all staff affected were offered four options in order to deal with an incapacity to attend at the work on the day in question. It went on to recognise that all of the Marks & Spencer staff, save for those 13 availing of this industrial relations mechanism, had taken up one of those four options, to recoup lost hours. Given the totality of the facts, the Labour Court affirmed the proposition that a consistent approach to all staff is in the interest of good industrial relations, and consequently, it could not recommend a concession to the demands of the Mandate trade union.
The key takeaway for employers is that they actually have an adverse weather policy and procedure in place. It is critically important that such a policy balance the competing commercial interests of the employer, with the health and safety of employees concerned. In any event, it should be objective, clear and applied with consistency.
Employers or employees seeking guidance on the ability of businesses in Ireland to operate, or the ability of employees to report to work when there are adverse weather conditions, should seek the guidance of a knowledgeable labor and employment Solicitor.