ISME discusses employee payments during Storm Ophelia

As Storm Ophelia was upgraded to category red on Sunday during its approach towards Ireland, the necessary shutdown of small businesses on Monday raised a number of issues regarding employee payments for non-attendance.

The Irish Small and Medium Sized Enterprise Association (ISME) has sought to provide guidance to employers now that the dust has settled on the most severe Atlantic storm to hit the country in almost 60 years.

The ISME admits that there is no definitive answer to appease all small business owners and indicates it is dependent wholly on the nature of the contracts of employment in place with each employee.

At present, no legislation exists to guide employers or employees when inclement weather conditions thwart work from taking place. Contrary to belief in some quarters, Force Majeure legislation is only applicable to illness or injury to an immediate family member. With no set guidance available for Monday’s unprecedented incident, ISME has attempted to interpret the legislation and outline what actions can be taken by employers.

Employers’ wage obligations

In the event the workplace remained open despite the weather conditions and employees chose not to go in to work – regardless of whether it was too dangerous to travel – employers are not obliged to pay Monday’s wages, unless company practice dictates otherwise.

In the event employees are unable to get to work due to treacherous weather conditions, employers should consider the following at their discretion:

• Pay their employees as normal
• Offer the chance for employees to work from home, if achievable
• Give employees the option of taking a day’s annual leave to cover their absence (though they are not obliged to do so unless you supply one month’s notice of this arrangement)

In the event an employer is forced to close their premises due to poor weather conditions, they are liable to pay their staff.

The concept of the lay-off clause

Some employers do however incorporate a ‘lay-off’ clause within staff contracts. These state that employees can be laid off work unpaid in the event of circumstances beyond their control, resulting in work being temporarily unavailable. However, for this clause to be active for Storm Ophelia and similar events, they must demonstrate they provided employees with sufficient notice as is ‘reasonably practical’.

For instance, if employees were required to travel to work and were subsequently sent home, this is unlikely to be viewed as ‘reasonable’ notice, leaving an employer liable to pay their wages. Conversely, if staff members were advised of business closures as quickly as possible after their region entered the ‘red warning’ zone, employers may be able to lean on the lay-off clause with greater certainty.

Regardless, the ISME insists that any employee that is not to be paid for missing work on Monday, must be communicated to at the earliest opportunity.

Date published 19 Oct 2017 | Last updated 19 Oct 2017