Strike disruption & infections rising – What are the employment implications?

With many parts of the UK facing disruption to work from the biggest rail strike in decades and concerns from rising infection rates (not just from COVID-19 but also monkeypox and even polio) many may be asking questions about where employers and employees stand.

How is pay affected here?

Generally speaking, employees are obliged to attend work and employers are obliged to provide work and pay the employee for the work they do. So, if employees fail to turn up for work, unless their contract indicates otherwise, the obligation to pay them generally falls away. But it’s not always that simple.

Employers should bear in mind that employees have a statutory right not to suffer unlawful deductions from wages. A deduction from wages will be unauthorised if there is no contractual basis for the deduction and could lead to an Employment Tribunal. Much depends on the circumstances.

There is case law to the effect that if an employee’s failure to come to work is unavoidable then they may still be entitled to be paid.

Further, if the employee is ready and willing to perform work, but is stopped by the employer, then the matter becomes more complex. For example, it may be that the employer chooses to shut the workplace because of the travel disruption from strikes. It may be that the employer chooses to not let the employee work due to the infection risk.

On the one hand, full pay has been found to be due in cases where an employee might have been infectious because they have been exposed to somebody with COVID-19 and excluded from the workplace by the employer on account of health and safety risks. None of these cases criticise the employer for preventing the employee to come into work because of the infection risk, but they did decide that the employee ought to have been paid in full in the circumstances.

On the other hand, there are cases finding full pay is not due when an employee does not attend work. There may be cases where full pay is not due when the employee is not excluded for the possibility of infecting others but instead it is because they are unable to do their job from testing positive of an infectious disease.

Further, if there is no guarantee of work (say, where there’s a zero hours contract) an employer will be in a stronger position.

What this all tells us is that consideration has to be given to the particular circumstances including what is in the contract, the handbook (including policies on travel, infection, absence, sickness and homeworking), and custom and practice of the organisation. So some cases will be more straightforward than others.

Is the law always the answer?

No. Even if an employer’s action is lawful, there could be reputational damage from it. Employers might get better results by taking a flexible approach regardless of what they can do in terms of the law, particularly where there is a cost of living crisis. ACAS suggests:

“The handling of (…) travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled.”

What other solutions are there?

As ever, employers should bear in mind their obligation of “trust and confidence” to employees. That means, in short, not being wholly unreasonable. If there is “Do not travel” advice or there is a serious risk of infection, employers should take care to ensure that they are not putting excess pressure on employees to come to work. Flexibility is the key. While employers cannot necessarily afford to pay employees when they are unable to work, employees will always be in difficult circumstances through no fault of their own. There are alternatives which employers may consider, such as:

• paying employees in return for their agreement that they will make up the time on their return
• agreeing with the employee that they will take the time off as paid holiday
• splitting the employee’s time spent off as 50% (un)paid leave and 50% holiday or, in some cases of infection, paying sick pay
• where trains are not running, whether there is an alternative mode of transport
• where facilities exist, allowing the employee to work from home or another site.

Can employees be made to take a holiday?

Unless the individual’s employment contract contains an express right for the employer to direct when their holiday is taken, it is doubtful that employers can force employees to take a day’s holiday without their consent, particularly after the event.

Employers are required to give notice of at least twice the length of the period of holiday, which often renders it impractical. If an employer intends to deduct days from an employee’s holiday entitlement, they must make this clear to staff at the earliest opportunity.

What if the employee uses the situation as an excuse?

But there may be a few employees who take advantage of the situation.

An employer may have a concern that an employee is using the strike or infection to avoid coming to work. An employer may choose to investigate the matter further and consider disciplinary action. For example, it should be fairly straightforward to establish if an employee’s train was cancelled when they claim that it was or, in some circumstances, an employer could ask the employee if they can provide evidence of having an infection.

What about future disruption?

It looks like we are braced for further disruption from strike action and future infection rates are very difficult to predict, but are unlikely to disappear completely. Over the pandemic, many businesses have limited the impact from such disruption through homeworking and other solutions by contingency planning.

The government has introduced new laws to enable temporary skilled agency workers to cover during strikes. The new laws apply across England, Scotland and Wales – in both the private and public sector and could further mitigate the impact (although there are claims they violate human rights and could be subject to judicial review).

Nevertheless, some businesses and employees simply cannot fully rely on these solutions especially those in the hospitality, healthcare, manufacturing and retail sectors.

This is a complex matter for employers and contingency planning, particularly to agree policies in advance of any travel disruption from strike action or infection within the workplace, will assist greatly. This type of contingency planning may be mandatory, with some insurers, government bodies and accreditation bodies requiring it. Regardless, it would be worthwhile taking this opportunity to consider amending policies and contracts to ensure clarity for both the employer and employees.

Policies could be changed to provide flexibility, including to allow employers to withhold payment of wages or to require employees to take holiday where travel disruption (or other unplanned circumstances) prevent them attending work or cause the employer to take a reasonable decision to close the workplace or prevent staff from coming in. A discussion with employees or trade unions at this stage could prevent damaging confusion if and when such challenges emerge.

If you want to know how to deal with the risk of rail strikes, industrial action or infections in the workplace, contact Robin Turnbull or your usual Anderson Strathern contact for further information.