Ewan Stafford, of Macleod & MacCallum in Inverness, and a member of United Employment Lawyers, discusses the thorny issues when getting to work on time is a major headache.
The Kessock Bridge is the gateway to the far North of Scotland and a vital link on the A9 road network. It is also an essential artery used by commuters to get to work in Inverness every day.
And that’s a major problem for many with resurfacing of the road bridge being carried out on behalf of Transport Scotland. We’ve already seen massive disruption – and frustration – and we face it once again as the second phase begins today – 10 February 2014 – and continues for 20 weeks through to the summer.
This work raises issues for both employers and employees alike and there needs to be sensitivity from both sides. Employers should ensure that they deal with any issues in a consistent and sensible manner, while employees need to do their best to get to work on time.
Where do we start?
As with most potential disputes, the best place to start is with what is in writing between the employers and employees. This normally takes the form of an employment contract and accompanying policy documents.
The terms of employment contracts form the basis of the agreement between the employer and employee and there may be room for manoeuvre in the terms included. For instance, the contract may provide that a certain number of hours are worked in a week but not necessarily specify when – this could provide room to vary hours without amendments being made.
Equally an employer may have a flexible working policy which is designed, or could be adapted, to cover circumstances such as the inconvenience caused by the bridge works.
But we have always done this before?
Aside from contractual terms certain clauses may be inputted by way of custom and repute. An example would be where an employer has routinely dealt with absences in a certain way and as such these terms are now inferred into the contract of employment.
Care should be taken when acting on the basis of implied terms. Employers should take care to deal with matters on a consistent basis lest they open themselves up to a potential discrimination claim.
Can I deduct pay if an employee is late?
Generally speaking it is unlawful to make a deduction from a worker’s wage unless the deduction is authorised by statute, by a contractual term that has been notified to the worker in writing or by the worker having given the employer prior consent.
Further sources of such authority may derive from staff handbooks, collective agreements or an implied right built through custom and practice.
What this means in all the circumstances is – it depends; if in doubt take advice. The options available to employers will depend on the circumstances unique to them.
Should I pay staff anyway?
Before any deduction is made employers may wish to consider the benefits of paying wages where an employee has been delayed through no fault of their own. A bit of leniency can improve morale and productivity in the workplace but it can also have the opposite effect where workers, who are unaffected by the bridge works, feel that they are losing out.
My child minder can’t make it today!
The bridge works may lead to instances where childcare is not available and as such an employee may have a right to take leave to care for dependents. In these circumstances an employer cannot force the employee to take paid leave and must not subject them to a detriment because of choosing to assert that right to take unpaid leave.
On the other side there is no statutory right to paid leave for such time off. This is, however, caveated by the fact that some employers have policies in place which provide for pay in such circumstances.
For statutory purposes the right to time off is limited to dependants. Dependant is defined as a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees).
We are all grown-ups – what are the alternatives?
It may be open for employees and employers to consider what arrangements they can make between them. For instance it may be sensible, where circumstances allow, that an employee is posted to another office to avoid commuting over the bridge or allowed to work from home.
Equally there may be an agreement that where there is a shortfall in hours that those hours are made up. If there is a flexi time scheme in place this may already protect against the difficulties brought by the bridge works.
Guidance for employers
· Develop a strategy for dealing with the inconvenience brought by the bridge works
· Communicate how you will deal with any disruption to your employees
· Be consistent in approach
· Listen to suggestions made by your employees – they may be inconvenienced just as much as you
Guidance for employees
· Take note of your employers policies and what is expected of you
· Communicate your difficulties to your employer
· Don’t assume your right to be paid is absolute
This article was produced by Ewan Stafford of Macleod and MacCallum Solicitors, 28 Queensgate, Inverness. Ewan specialises in employment law and acts for both employers and employees. Ewan regularly acts in Employment Tribunals and advises on all employment law issues. If you require employment law advice please contact Ewan directly on 01463 239393 or via email email@example.com.