In the wake of Ophelia

17 October 2017

In the wake of Ophelia, many employers are asking the question – do I have to pay workers who did not attend for work?

In the wake of Ophelia

Whilst the basic position is that wages are not payable unless an employee has provided consideration (i.e. actually worked), there is no sure and certain answer, as it depends on a combination of rights; specifically, a worker’s right not to suffer an unlawful deduction of wages, and the express and implied terms as incorporated into a worker’s contract.

It is unlawful to make a deduction from a worker’s wages unless the deduction is authorised by legislation, a contractual term, or prior written consent of the worker. However, more often than not, there is no obvious express or incorporated contractual term, and no evidence of custom and practice.

In these instances, workers may be divided into 2 categories; the first being hourly paid or piece workers. Said workers, without guaranteed hours, are unlikely to be contractually entitled to wages unless they work in accordance with their contract. The second, and more complex, category is that of salaried employees, who, if ready and willing to perform the work but work is not available, could remain entitled to pay.

There are legal authorities supporting the view that, provided the non-performance of work is involuntary and unavoidable, a worker may still be entitled to their wages regardless.

However, notwithstanding the legal uncertainties, there are a number of reasons an employer should still pay its workers if they were unable to attend for work due to adverse weather conditions; particularly:

  • Ensuring continuing employee relations;
  • The risk of adverse publicity; and
  • Possible abuse of an employer’s sickness absence policy

To name but a few.

Alternatively, an employer could permit homeworking, the workers’ taking paid annual leave (if the worker has a remaining entitlement and notice can be given in accordance with the Working Time Regulations), or working up of the hours.

Ultimately, the question of whether a worker is to be paid is fact specific and an employer should take legal advice before acting.

Toni-Fitzgerald Gunn is a Solicitor in Worthingtons Commercial Solicitors, Belfast, where she specialises in Employment Law. 


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