Travel disruption: Employers' questions answered

With further strikes taking place in January 2023, nationwide industrial action on the railways continues into the new year, effectively shutting down the rail network and causing ongoing travel disruption for millions of employees. Stephen Simpson answers five common questions from employers on the workplace impact of travel disruption.

1. Do we have to pay employees for working hours missed because of transport disruption?

In principle, an employer would be within its rights to refuse to pay an employee who misses work because of transport disruption.

This is because an employee who is not working during their contractual hours is not fulfilling their contract of employment, and so the employer does not have to pay them.

This is the case even if the employee's lateness or non-attendance is out of their control, for example because of transport disruption.

However, it is good practice for employers to take a pragmatic approach, even if employment law is on their side in this scenario.

The financial disadvantage of paying staff even though they are not working because of transport disruption may be outweighed by the benefits. Staff morale and a reputation as a good employer are among the benefits of paying staff who miss work because of transport disruption.

2. We operate under the hybrid working model. What if there is disruption on a day when the employee is normally expected to attend work?

Employers should build sufficient flexibility into their hybrid working model to allow the employee and their line manager to agree to work remotely on a particular day on which they would normally be expected to attend work.

Where an employee is simply unable to get to work or would face severe delays and they are set up for remote working, the most sensible solution will often be for the employee to work from home that day.

It may be that the employee agrees as a one-off to attend work on a later day on which they would normally be working remotely.

Employers should always remember that showing a degree of flexibility during periods of transport disruption can benefit staff morale and their reputation as a good employer may benefit in the long run.

3. Can our employees take periods when they cannot get to work because of transport disruption as annual leave?

Where an employee is unable to get to work because of disruption to transport, taking the time as paid annual leave may be a good option.

There is nothing to stop an employer from asking if the employee would like to take extra holiday if they are unable to get to work in this scenario. Employers will probably find that many employees would prefer to take paid holiday rather than lose out on pay.

However, there may be circumstances in which this is not possible. For example, this could be the case where the employee has already used up all their annual leave for that year.

As an alternative, the employer could give the employee the time off as additional unpaid leave, or ask them to make up the time later, for example by swapping shifts with someone else.

4. What if transport issues disrupt an employee's childcare arrangements, for example if their nursery is closed or their usual childminder is late or unavailable?

Employees have the statutory right to a reasonable period of unpaid time off for dependants.

The right applies where an employee needs to take time off work because of unexpected disruption to the care arrangements for a dependant.

The right to time off for dependants would clearly apply to an employee where their nursery is closed because of staff shortages or their usual childminder is late or unavailable.

An employee who is taking time off for dependants must inform the employer as soon as is reasonably practicable of the reason for their absence. The employee must also tell the employer for how long they expect to be absent.

The right to time off for dependants is designed to allow the employee to deal with an unexpected event and to make alternative arrangements. It is therefore likely to be reasonable for an employee to take one day's absence to make these arrangements - the right is not designed to give employees time off to care for their child for an extended period.

5. Do we still have to pay our staff if transport disruption has resulted in us closing temporarily because of a staff shortage?

If an employee has been able to work remotely, the employer must pay them their normal wages.

If an employee is unable to work because their employer has made the decision to close the premises, this will in effect be a period of lay-off.

The employer should pay the employee their normal wage, unless there is a contractual provision allowing for unpaid lay-off, or the employee agrees to being laid off without pay.