By Jemma Pugh, Solicitor, Lester Aldridge LLP
With another strike affecting services on the London Underground looking likely to take place from 9pm, Monday 28 April 2014 until Thursday morning, passengers will no doubt face widespread disruption to their journeys to work. This won’t just affect those who use the Tube to get to work; it will also have a knock-on effect in respect of traffic on the roads. The strike is over the proposed closure of ticket offices, with a large number of job losses expected.
But what about your employees; what are the implications if they say they are not able to get into work?
This certainly isn’t the first tube strike and is not likely to be the last, with another already planned for 5 May 2014. Obviously, a Tube strike only affects people working in London but generally, in times of travel disruption, or extreme adverse weather, some employees will go to great lengths to get to work despite a journey of several hours. However, others may seize the opportunity to stay at home.
Must I pay my employees if they do not make it into work?
This depends on whether the employee has a contractual right to be paid in these circumstances.
You should look at the terms of their employment contract, any policies you may have and any custom or practice which might have developed. What approach have you taken in relation to previous tube strikes? There is an argument that you should be consistent.
In the absence of any such rights, the employee is not entitled to payment of wages. Some employers request that employees take this time as part of their annual leave entitlement, or as unpaid leave.
Can I choose to pay my employees anyway?
You may decide to pay your employees even if they don’t make it into work on the strike dates. The positive morale and good publicity from this additional benefit may justify the inevitable cost. It may also deter employees from being tempted to call in sick in order to still receive payment. This may cause resentment from other employees, who are not paid due to circumstances which are wholly outside their control.
Employers can treat staff on a ‘case by case’ basis. However, should you choose to approach the issue in this way, bear in mind that an employee may try to claim that this is discriminatory, or less favourable treatment. It is far safer and better practice to treat staff consistently.
How can I prepare for any future disruption?
There is no doubt that at some point in the future we will face more transport disruption or be knee-deep in snow. Prevention is better than cure, so be ready:
• Think of ways around the disruption – arrange lift shares for employees or provide taxis to collect employees.
• Be flexible – give employees the capability to work from home or allow alternative working patterns.
• Implement a policy which clearly sets out what will happen if these circumstances arise. Will employees be paid? Will it count as annual leave?
• Have reporting requirements in place to ensure that staff notify you promptly if they cannot get into work.
• Have contingency plans to make sure your business can function if a large number of staff are absent at any one time.