A Leading employment lawyer has warned employees that there is no obligation by employers to pay them for failing to attend work or for arriving late due to disruptions to public transport for the missed time.

This is unless there is specific provision for such absence to be paid in the contract of employment.

Jacqueline McCluskey, employment partner with national law firm, HBJ Gateley Wareing, made the warning as the worst winter in 45 years continues to grip Scotland, bringing with it freezing temperatures which in turn are taking their their toll on schools, roads and rail. It has been estimated that the big freeze has already cost the Scottish economy up to £100 million.

The onus is on the employees to get to work and the obligation to pay under the contract of employment arises only where they are ready, willing and available for work. If employees fail to turn up for work or turn up late in these circumstances, the employer is under no obligation to pay them for time not worked, even though their absence or lateness was through no fault of their own. A failure to pay an employee in this situation is not an unlawful deduction of wages under the Employment Rights Act 1996, section 13 because there is no contractual right to any such payment.

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However, if employees are having problems getting to work due to public transport disruptions, the employer may wish to consider making some accommodation for them. The employer should first encourage the employees to explore alternative means of transport, for example other public transport options, walking, cycling, travel by car or car-sharing with other employees. If an employee is still unable to attend work, the employer may wish to give consideration to whether the employee could usefully work from home or from an alternative local office until the travel situation improves, or whether the time could be made up at a later date.

If these are not viable options, the alternatives available for the employer are to advise the employee that any time off work in these circumstances will be unpaid, paid or paid on a discretionary basis but in exceptional cases only. The employer could also suggest that the employee take paid annual leave if he or she wishes to be paid for the time off. An employer cannot insist that an employee take annual leave without the requisite notice but there is nothing to stop it asking if an employee would like to take a day's holiday because of being unable to attend work on that day.

Jacqueline said: “It is vital that employees are aware that the onus is on them to get to work and they must do their best to try and get there. Employers should however take a common sense approach and be flexible in terms of looking at other possible arrangements if employers are not able to get to the workplace, including working from home.”

(GK)