The number of strikes affecting public transport is creating havoc with employee attendance. Where do employers stand on this issue?
Where an employee fails to turn up to work on time, employers may hope that this is a one-off incident – but every minute counts. Employers are entitled to require employees to turn up and be ready for work at their start time; being a couple of minutes late can add up to a large amount of time lost over the course of a year. The reason behind the lateness may be outside the employee’s control, for example public transport delays or unexpected traffic. So a quick, informal word with the employee may be enough for them to take steps, such as leaving their house earlier, to ensure they arrive on time.
Employers can deduct pay for the time missed if this has been agreed in advance by the employee, usually in their contract of employment. Any deduction needs to be fair and reasonable to the actual time lost. For example, a deduction of 30 minutes pay for four minutes lateness is likely to be unreasonable. Care also needs to be taken to ensure the deduction does not take pay below minimum wage. Repeated incidents of lateness can be treated as a formal disciplinary matter for which employers can impose sanctions.
Where the employee has failed to turn up for work without prior notice they are classed as absent without leave (AWOL), and this is usually dealt with as an incident of unauthorised absence. Employers should carry out the procedure contained in their absence policy. Normally, the first step is to make attempts to contact the employee to find out their reason for not attending work. It could be that there is a genuine reason for their absence, such as sickness or an emergency, which has prevented them from notifying the business of their absence in the normal way.
Employers should be aware that there is no requirement to pay an employee for periods of unauthorised absence; the employee has failed to perform their part of the employment contract by not attending and carrying out work. There is a grey area of law that suggests that once an employee has been on unauthorised absence for a period of time, employers can decide that the employee has breached their contract and can be treated as ‘self-dismissed’. Caution needs to be taken here, however, and employers will be expected to produce evidence to show they have taken all reasonable steps to contact the employee. This may be through sending recorded letters, emails or messages to establish whether the employee is intending to return to work. So long as there are no other underlying issues that could result in a tribunal claim employers can safely treat the employment as at an end.
During public transport strike action, incidents of lateness can drastically increase. Employers can take proactive steps to see if there are any alternative arrangements which can be made for the day. This can include working from home, agreeing to take annual leave or using banked time off in lieu. These alternatives will reduce the likelihood of the employee being delayed or being unable to attend at all. If an alternative is agreed, the employee should be paid as normal.
- Amanda Chadwick Employment law and health & safety presenter, Peninsula Business Services
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