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So, last week saw a demonstration of repeated bad behavior on the part of employers.

Despite a red weather warning not to travel due to danger of death many employers still expected their employees to attend work, docking wages if they didn’t and/or threatening disciplinary action.

What emergency, crucial, public or emergency service were these people carrying out, that they had to go to work during a red weather warning, I hear you ask?

Well, therein, lies the problem. Most of the worst employer culprits were very much NOT carrying out essential public services.

Throughout the week, the Better than Zero Campaign did an excellent job in highlighting workplaces which were asking their employees to attend work. These included various supermarkets and branches of fast food chains. This was followed up by an excellent piece in the Sunday Mail which can be read here.

Sunday saw the Transport Minister Humana Yousaf MSP said publicly that it was “unacceptable” that employees were losing pay due to following Government issued weather advice and/or being unable to attend work.

Yesterday, the STUC raised the issue with the First Minister. After the meeting a statement was issued. The statement expressed concern about the treatment of many employees and stated:

“We are committed to doing everything within our current powers to encourage employers to be fair and flexible. That is why we have agreed to collaboratively develop a Fair Work charter focusing on the treatment of workers affected by severe weather or other emergencies”.

The question therefore is what can be done?

Unfortunately, the law as it stands is of very little, if any, assistance to those unable to attend work due to adverse weather. Employees are employed under a contract of employment. The fundamentals of that contract are that an employee provides work and is paid according. Therefore if the employee is not at work there is no entitlement to pay. That is the starting place. There is no entitlement to pay if you were not at work.

Some employers will have an adverse weather policy. This may set out that certain rules regarding when an employee will and will not be paid in adverse weather. For example, pay might be given for 1 or 2 days and thereafter the employee will be expected to take unpaid leave or use holidays.

The situation is slightly more positive if disciplinary action is threatened or taken against an employee for failing to attend work due to adverse weather. With the obvious caveat that each case will turn on it’s own facts and circumstances an employee who is unable to attend work due to the weather and is able to demonstrate this should not be subject to disciplinary action. If an employee simply cannot attend work, all public transport is off and it is not walkable, the employee has not doing anything wrong if they are unable to turn up to work. It would not be reasonable for them to be disciplined, and certainly not dismissed, in these circumstances.

This will give cold comfort to those unable to travel to work last week and therefore losing out on pay. Given the coverage this issue has received and the amount of queries Thompsons have received about it matter it seems that the law is grossly out of step with public opinion.

Unfortunately, despite the Scottish Government’s sympathetic words, they have little - if any - power to change the law in this area. Employment Law is a reserved matter and it is pretty clear that you won’t see the Tories doing anything to help employees any time soon.

Further, the Scottish Government stating that people who didn’t make it in to work should be paid makes no difference to each individuals contract of employment. There is no legal obligation or expectation that this is to be followed.

Unfortunately this is a situation where employees are left at the mercy of the employer’s good will, and if their behavior in the last week is anything to go by this is unlikely to be particularly favorable to workers.

Blog by Jillian Merchant, Employment Lawyer Glasgow

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