The late upgrade of Storm Ophelia to category red on Sunday, and the subsequent shut-down of most businesses on Monday, raised a number of issues for Employers. Most obviously, the issue of whether employees need to be paid for non-attendance at work yesterday has been raised with us by a large number of employers already.
Unfortunately, there is no clear-cut answer to the question, which is highly dependent on the nature of the contract of employment in place.
There is no legislation in place that gives guidance to either employees or employers as to what happens when inclement weather conditions prevent work from taking place. Despite some reports, Force Majeure legislation as it currently stands only covers illness/injury to an immediate family member, and does not cover an emergency situation of general application. Monday's storm was an unprecedented incident, and so in the absence of any further guidance we must interpret the legislation ourselves to determine what actions should be taken.
The general rule if the workplace remained open is clear: If the workplace was open, and employees failed to turn up to work, (even if they were unable to attend due to the weather conditions), there is no requirement to pay, unless custom and practice or company policy establishes otherwise.
Where employees failed to turn up to work due to the weather conditions, the employer can, at his/her discretion:
Continue to pay the employee as normal
Consider allowing the employee to work from home if possible
Allow the employee to make up their missed time at a later date
Provide them with the option of taking a day's annual leave to cover their absence (It is worth noting however, that you cannot force an employee to take a day's annual leave unless you provide them with one month's notice of this requirement)
Difficulties arise where the company was closed, or sent employees home upon turning up to work.
In general, where an employer cancels work (or is forced to cancel work), the employer is liable to pay employees.
However, there is a possibility that some employers have included a "lay-off" clause within their contract that states employees can be laid off work; where, through circumstances beyond the employer's control, they are unable to provide work temporarily. In order to rely upon this clause, the employer needs to be able to show that they provided as much notice as is "reasonably practical."
If employees were asked to turn up to work and were then sent home, it is likely that this would not be seen as reasonable notice, and the employer would be liable to pay. Alternatively, if employees were advised of the closure of the business as soon as possible after their locality entered the "red warning" zone, it is possible that employers may be able to rely upon the lay-off clause, provided it is included in the contract of employment.
In any event, if an employee is not to be paid for missing work yesterday, for whatever reason, this should be communicated to them as early as possible.