This month sees further nationwide industrial action across transport links, specifically the rail networks. Whilst the basis of the strikes is widely accepted, there is no doubt that there will be great travel disruption for millions of employees, without any clear guidance for employers.

We are often asked some common questions surrounding this. Employment Law Solicitor, Hannah Dowd, was on hand to answer some FAQ's.

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Are employees entitled to pay for working hours missed because of transport disruption?

Technically, there is no requirement for an employer to pay an employee for missed work due to transport issues/disruptions. This goes to the root of the contract of employment and by not working their contractual hours means that the employee is not fulfilling their contract of employment. In principle, an employer would be within its rights to refuse to pay an employee who misses work because of transport disruption.

Even when the issue is out of the control of the employee, this is still the case.

However, it is not good practice to follow this regime, even if the law is on the employer’s side. We would always advise employers that even though their staff are not working because of transport disruption, to deduct their salary as a result could lead to low staff morale and a risk of damaging the employers reputation – which I would always suggest are crucial to the success of a business.

We operate a hybrid working model. Can we insist that an employee is in the office on the days that they agree to work from the office?

Hybrid working models should be drafted and built with sufficient flexibility in order to allow an employee and their line manager/team leader to agree to working remotely on days when they would be expected to attend work.

The practical and most sensible solution is to allow an employee to work remotely when delays/cancellations and disruptions are preventing an employee from attending work.

It may be agreed for the employee to attend work on a different day, for example one whereby the employee would normally be working remotely.

Again, the risk to the reputation of a business and staff morale can be seen to greatly outweigh not showing a degree of flexibility at a time when it is inevitable there will be some disruption to an employees working day.

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

This could be a good option for some employees, and there is nothing to stop an employer suggesting to the employee that they could take leave when they are unable to attend work due to disruptions.

However, what if that employee has used up all their annual leave for that year. This can create difficulty for the employee and so an employer should look at other options for the employee and discuss together what those options are.

Most people would prefer to take paid leave than lose out on pay, but there will be times when this is not possible. We would always suggest applying the most sensible option on a case-by-case basis.

If shift swaps are an option, or making time up to prevent a financial deficit to the employee, this should also be considered by the employer.

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?

This is a question that crops up a lot. Employers should be reminded that employees have a statutory right to a reasonable period of unpaid time off for dependants under section 57A of the Employment Rights Act 1996.  

"Dependant" means a spouse, civil partner, child, parent or person who lives in the same household as the employee other than as an employee, tenant, lodger or boarder

The right applies where an employee needs to take time off work because of unexpected disruption to the care arrangements for a dependant. It would apply where a nursery is closed due to issues with their staff, for example staff shortages or the unavailability of a child minder.

An employee should always try to inform their employer as soon as practically possible and if possible, try to identify the length of time they might need to have off from work.

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.

Does your organisation need a policy on transport disruption?

If this is something you require, please contact Jackson Lees for Business and we can review your policies. We can also draft additional documents which can help the workforce become aware of the rules that will apply if they have any difficulty in getting to work due to transport disruption.