The possibility of a walkout by tanker drivers could lead to a fuel shortage. How will this impact on your business? Will you face problems as individual employees cannot obtain fuel to travel to work? Will fuel shortages impact on your ability to run your manufacturing operations and/or interrupt the delivery of raw materials or components causing a reduction in work for some or all of your employees?
In this HR briefing, we consider some of the employment law issues in relation to both of these situations.
Employees cannot get to work
Many members will have had to address similar issues when employees were unable to get to work because of travel disruption caused by snow. The basic legal premise remains that employees are only entitled to be paid if they are ‘ready and willing to work’. So, in most cases, it is not necessary to pay employees for any day they can’t come to work because of fuel shortages.
Employees may, however, have a contractual right to be paid when they are absent in circumstances beyond their control if there is provision for this in their contracts, applicable collective agreements, staff handbooks or other policies or as a result of previous custom and practice.
In any event, withholding pay in circumstances where an employee can’t get to work through no fault of their own raises significant employee relations issues. As such, you may instead elect to withhold employees’ pay only in circumstances where you reasonably believe that an employee did not make reasonable efforts to get to work.
It would be prudent for companies to make it clear, in writing, that they expect employees to make reasonable efforts to get to work.
If an employee can’t get into work, you could consider allowing them to work from home, where possible, encourage them to take a day of annual leave, or make arrangements for them to make up the time at a later date.
If the fuel shortages mean that you have to temporarily close the workplace, which results in your employees being unable to work, then unless you have a 'lay-off' clause in contracts or in a collective agreement and have complied with it, your employees are entitled to be paid.
Without an agreed lay-off clause, an employer has no right to unilaterally impose a lay-off. In these circumstances, employees should not be required to take annual leave or make up the time.
See our mini guide on short-time working and lay off which takes a practical look at what lay-off and short-time working involve, including when you can use them and how sustainable they are, as well as what employees are entitled to from you and the State during a period of lay off or short-time working.