Strike season: What if my employees can't get to work?
Posted on 17th March 2023 at 10:50
Strikes are still coming thick and fast across various industries, with strikes planned throughout March and April including teachers, railway workers, bus drivers, and motorway maintenance workers
This could have a knock-on effect on businesses, as workers are unable to get to work either due to transport disruption or childcare problems. This creates a dilemma, especially in industries that require workers onsite. The situation is beyond the control of both employee and employer, so who should bear the loss?
Contractually, employees are simply obliged to work at the agreed location. How they get to work is usually a matter for them and, strictly, non-attendance is a breach of contract. Employers will usually be within their rights to tell employees that if they can’t attend work they won’t be paid.
However, if the only practical way they can travel is not available, then they will not have a choice. This could cause ill-feeling for employees who will believe that they are being punished for something they can't change.
If employers are determined to take a strict approach, it is best to take an informal approach to start with. Disciplinary action should be reserved for employees who are using the strike as an excuse not to come in, but must still follow the correct procedure. Hold an investigation meeting with the employee and explore other options available, giving the employee a chance to explain their circumstances.
Where employees can work from home, this is a far better alternative. If your business managed to work remotely during the pandemic, it may be difficult to refuse the option now. Where employees work on a hybrid basis between the office and home, employers could be flexible about which days are 'office days', to work around the strikes.
If working from home is not an option, employers could consider asking the employees to take a day’s leave. With enough time and warning the employer could compel the employee to take leave using regulation 15 (2) of the WTR 1998. The employee would then still be paid for the time off, but may feel aggrieved at losing a day's leave.
School closures and childcare
Employees are entitled to a reasonable amount of leave to deal with an emergency involving a dependent. You are not obliged to pay workers for this leave or may ask that they make the time up.
As parents have received advance notice about strikes, you may argue that this is not an emergency. However, a dispute puts you at risk of sex discrimination claims, as the tribunal accepts that women usually take more of the burden caring for dependents. It will be for the tribunal to determine whether the employee had the right to ‘emergency’ time off and, by this point, the claim itself would have been damaging. Allowing time off and asking the employee to make the time up (if possible) would help the employee, avoid loss to the business and reduce the risk of discrimination claims.
Working from home might resolve the issue if the job can be done remotely. Whether this is suitable will depend on several factors. Employment contracts often contain clauses about using work hours to focus on relevant work. Depending on the age of the child, this will be easier for some parents than others. However, you may decide that any work is better than none, or focus on output rather than fixed hours of availability. If the job includes holding external meetings, you will need to consider the impact of having children present on confidentiality and business reputation.
What about the knock-on effect on other staff?
Workers who put themselves out to make alternative arrangements and get to work, or who pick up the additional work while others are absent, may feel aggrieved if others are paid to stay at home. However, it is unlikely they will be able to make any legal claims.
As you know your staff best, you will need to decide which is likely to have the biggest impact on staff morale – being flexible to support those not in work, or taking a hard-line to avoid those in work feeling aggrieved. You could also consider a way to make those who make it to work feel appreciated – a simple gesture like providing lunch could change the atmosphere.
What if power strikes affect our office?
Unite the Union has said that the strikes will disrupt maintenance and repair of the electricity grid. This should not cause any issues day to day unless you are unfortunate enough to have a problem that needs repairing. If you are unlucky enough to need to stop work or close the office, workers who are available and willing to work must still be paid.
What should I do?
This depends on your business circumstances and the type of work you carry out. You could consider unpaid leave, annual leave, additional leave, working from home or rearranging shift patterns. It is sensible to make clear that any additional leave or change to working arrangements is discretionary, and not a change to contractual terms.
Whatever you decide to do, make sure the approach doesn’t impact unfavourably on people with protected characteristics or you may be at risk of discrimination claims. For example, a person who is not able to drive due to a disability is more likely to be affected by transport strikes. An employee whose child has a disability may find it more difficult to arrange suitable alternative care, or their child may be more adversely affected by a change in their routine. Consider ways you can support group with protected characteristics to avoid claims of indirect discrimination or failure to make reasonable adjustments.
If you feel certain employees are using strikes as an excuse to take days off, you should investigate thoroughly before taking any disciplinary actions. Even if you are right, you must follow the correct process to avoid legal claims.
Being as flexible as possible will help maintain morale and goodwill from those affected by the strikes, but don’t forget to show appreciation for those still at work. The cost to your business should be more than made up for in positive working relations.
If you're unsure, get in touch for advice. We can help you plan your approach to reduce the risk of legal claims.
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