By Amy Paxton and Stephen Thomas
The unrest that has occurred in the UK in the past few days demonstrates just how quickly situations can escalate and how businesses and their employees can be affected.
Croner has put together the following guidance document to help businesses concerned with the impact this, or similar situations, may have on their organisation.
What if our business has been damaged and we cannot open as usual?
- If an employer is unable to provide its employees with work they would be responsible for continuing to pay them or find alternative work for them to do. Consideration should be given to whether or not it is possible for them to work from home or at other sites on a temporary basis. Employees could be offered the opportunity to take holiday.
- Employers may be able lay off employees or put them onto short time working for a short time if there is an express term in the Contract of Employment allowing such actions or if employees consent to it.
- If employers have to lay staff off or put them onto short time working, they should, as far as is reasonably practicable, give employees as much notice and as much information as possible. The period of lay off should be reviewed regularly and should not last any longer than necessary.
- Alternatively, employers may be able to force the employee to take annual leave, however this would require the employer to issue twice the notice as the time you require them to take. This may not be possible. Care should also be taken to ensure that in forcing employees to take leave, the employer is not acting in breach of contract.
Employees with at least one month’s service, who are not provided with any work throughout a day during which they would normally be required to work under their contract of employment are entitled to be paid a guarantee payment. The current rate of Guarantee Payment is £22.20 per day and is limited to five days in any period of three months.
What if an employee cannot get to work because of disruption to public transport?
In the circumstances, it is likely that a number of employees will face similar problems. Therefore, it would be unlikely that an employer would consider this to be unauthorised absence or take disciplinary action, given that their absence is not as a result of their conduct or actions and therefore any such decision is unlikely to fall within the band of reasonable responses and could be seen as contrived. The employee should be given the option to take holiday or unpaid leave for the time they are absent from work. Where possible, employers may wish to offer employees the opportunity to make up the time later on.
Employers should issue employees with an instruction to keep them updated.
If there is any doubt that an employee was genuinely affected by the travel disruption, employers can of course undertake an investigation. If, following a thorough investigation, the employer is still not satisfied that the employee was genuinely unable to get to work it may decide to take formal disciplinary action. Employers must ensure that they follow a full and fair disciplinary process.
What if employees do not turn up to their shift as expected?
If an employee is due to attend work and fails to notify the employer of their absence, an employer will be entitled to investigate this with the employee. Whether or not it would be appropriate to take any formal disciplinary action should be taken will depend upon the reasons for the employee’s failure to attend work or comply with the company’s absence reporting procedures.
What if employees request to leave work early as a result of concerns for getting home?
If an employee has any concern about remaining at work during this time and requests to leave, employers are advised to give due consideration to such requests. The health and safety of employees is paramount. An employer would be ill advised to force an employee to attend or remain at work if it was not safe for them to do so.
If an employer agrees to requests for time off, this could be unpaid leave or the employee could ask to take annual leave to cover this period.
As an alternative to agreeing to any request to leave, the employer should consider if any other arrangements could be made to allay the employees concerns — for example — by arranging transport to get them home, increasing security measures in the workplace, arranging for people to leave in a group.
What if we need to send employees home as a safety precaution?
If an employer takes the decision to send employees home part way through their normal working day, they may be obliged to pay the employees the normal rate of pay.
What if an employee fails to attend work as expected due to imprisonment or suspected involvement in criminal offences?
It would be legitimate to deal with employees who have been engaged in criminal activity if that leads to lost time at work or if the business is brought into disrepute; or if the employee damages their own workplace or if there is some other connection with their employment. In each case the employer would need to show they acted reasonably and followed a fair procedure before taking action; the action must also be proportionate.
To dismiss an employee due to being held in custody for a day or two would be unfair; dismissing an employee who is sentenced to several months in jail might be fair. It is imperative that employers follow a fair and thorough procedure.
Do we need to offer time off for employees who are special constables?
In most circumstances an employer will be under no obligation to permit an employee to take time off (paid or unpaid) to undertake volunteering opportunities. However, under s.50 of the Employment Rights Act, there are limited circumstances where an employee will be entitled to take unpaid reasonable time off to carry out certain public duties, such as special constables.
There is no qualifying length of service before the employees become entitled to assert this right, and the duration of time off will depend on individual circumstances taking into consideration the time required to perform the duty, how much time off the employee has previously been given in relation to the duty, and how practicable it is for the business to sustain the employee's absence.
Health and safety
Dealing with disruptions from a safety point of view Disruptions, or emergencies, generally fall into one of two categories:
1. Small-scale emergencies: these tend to occur when deviations from safe working practice or safe systems result in exposing individuals to danger. The danger is localised to the immediate work environment and has no impact on the rest of the workplace or other persons in the vicinity. This danger may result in the injury/fatality to the worker or others, as well as damage to plant and processes. The required response is likely to be limited involving only a few parts of the overall plan.
2. Major incidents: these will involve, or have the potential to involve, serious danger to people, the environment or both. They can involve significant loss of plant and equipment, buildings and assets and may set all parts of the “plan” into action.
Typically the nature of an emergency requires urgent action to either control the situation or stop it developing into an even more serious one, or to remove persons from the vicinity in order to protect their safety. Often, both actions are required.
Disruptions could last for several days, and in severe cases, even longer. There is some overlap between the threats and impacts. For example, loss of power may be the precursor to a variety of incidents: it can also be the consequence of fire, flooding, etc.
Normal business may be disrupted by:
• employees unable to work
• customers unable to get the services/products
• violation of contracts and contractual agreements
• fines or penalties
• legal costs
• cash flow
• loss of reputation and damage to image
• job losses
• failure of critical supplies being delivered
• distribution of goods to customers
• environmental damage
• shareholders' loss of confidence and drop in share prices
• breach of statutory or contractual obligations.
Dealing with an emergency
Emergencies generally have clearly defined stages, each of which needs to be considered when developing a response plan.
These stages are:
• Immediate involves:
Reaction: This phase is about the initial response to the emergency. It
o identifying that there is imminent danger and providing warning for personnel
o initiating immediate control (this may include fire fighting, rescue, plant shutdown, initiating the emergency plan)
o informing key personnel o informing the emergency services.
The incident response team should consider the following five urgent questions as part of the initial response.
1. What is known about the incident?
2. What is not known about the incident?
3. What would ideally like to be known?
4. How can this be determined?
5. What time is available?
From the answers to such basic questions a more accurate picture of events should emerge.
• Warning: Warning devices should be activated. In some cases the warning devices will be linked to the plant and sound automatically; in other situations it will be necessary to manually sound alarms.
• Immediate Control: Control measures should be initiated immediately once a warning is given or an occurrence of danger happens. The prime actions will be to ensure that persons are removed to a place of safety. It is vitally important that all personnel have a knowledge and understanding of the emergency provisions and can undertake the necessary actions to ensure their safety and the safety of others. Key personnel should be identified, informed and summoned as necessary.
• Activating the Emergency Plan: Where appropriate, the emergency plan should be initiated. This should be done by the person (or persons) authorised to put the plan into effect. The nature of most emergencies means that the plan will only partly provide for the necessary actions that need to be undertaken. It is therefore important that the personnel identified in the plan as having responsibility to ensure specific actions are undertaken, or outcomes achieved, are competent and able to determine how suitable the plan is in relation to the particular circumstances. There will be situations where the nature of the emergency may not allow this to happen.
• Emergency Services: Emergency services should be informed as soon as possible. Sufficient information should be given to identify the site and location and the nature of the emergency. In circumstances where the emergency services will require the assistance of persons with on-site knowledge, eg of chemicals and processes involved, these persons should be notified and directed to a rendezvous point where they can meet the officer in charge of the responding emergency service. Site plans, shut-off controls and utility services should be available to assist the emergency services where this is necessary.
• Controlling Emergencies: This phase of the emergency may last for some time depending on the circumstances. In the case of explosions, the emergency may be of catastrophic proportions but the control measures will be of limited duration once structural damage and the possibility of fire has been contained. In the case of fire, the control stage may be prolonged.
Control actions will include the following:
o Establishing a control centre and ensuring co-ordination of all the necessary control activities. This will normally involve one or other of the emergency services where loss of life has occurred or fire and rescue operations have been required.
o Identifying personnel and ensuring evacuation has been undertaken and achieved. This will require a process for undertaking a roll call and assisting the emergency services in locating any persons not accounted for.
o Removing injured persons to a place of safety to be dealt with locally by initial first aid and, where appropriate, removed to hospital.
o Protecting other areas. Areas of the worksite not directly involved should be protected and steps taken to safeguard plant, equipment and materials.
o Making safe structures and materials (including any water run-off from the site) and generally ensuring the effects of the emergency are mitigated.
• Recovery: As the emergency progresses and the situation is brought under control, there will come a point when the immediate danger is removed and it is possible to consider undertaking salvage work, preparing to resume normal work or otherwise determining the viability of premises, plant or processes.
In this phase the action required is that of winding down the emergency response and taking stock of the situation. It is at this point that attention will be given to the implementation of any contingency or business continuity programme that has been devised.
• Security: Decisions will need to be made about making the site safe and secure. Security should be an early consideration both from the point of view of protecting those who are legitimately on site and also dangers to unauthorised persons.
In particular, there is a higher duty of care to children who may enter an unguarded unsafe site and suffer injury. Security also has benefit with respect to protecting additional losses through theft. Repairs and salvage arrangements can be put in place and work undertaken to provide protection from the elements, clear-up and prepare for return to a state of normality.
Amy Paxton is a Senior Employment Consultant and Stephen Thomas is a Safety Technical Consultant at Croner, the UK’s largest provider of workplace information, software and services, part of the global information services business, Wolters Kluwer.
Join us on