What can we do about staff who do not come to work when there is a public transport strike? I can understand that these are events outside of their control, but it is not the company’s fault either. Also, it doesn’t seem fair to those who have made the effort to get to work to be seen to reward the absentees with an extra day off.
Under their employment contract, an employee has agreed to attend (or at least be available for) work during their contracted hours. Absences from work should either be by contractual arrangement, preferably in advance (such as annual leave), or permitted by law (such as time off for domestic emergencies or maternity leave).
While transport strikes are outside the control of both employers and employees, it is the employee’s responsibility to make sure they get to work. How they do this is up to them. It is a good idea therefore to set out the company’s policy on transport strikes so that staff know in advance how their absence will be treated.
You can either specify how the absence will be treated or offer a range of options from which the employee can choose (subject to your agreement). An employee can either be required to take the day as paid holiday from their annual leave allowance or take the day off as unpaid leave. An employee can also be given the option of working extra hours on other days (and make sure they do) or, if it is a viable alternative, to work from home. It is always sensible to remind staff of this policy in the run-up to any strike.
It is important to be consistent in applying this policy to all staff and for every strike. If not, this could give rise to complaints of less favourable treatment, which could trigger complaints of discrimination (for example, if older staff were being treated more leniently, from 1 October, the younger employees could claim this was age discrimination).
It is always a good idea to acknowledge the efforts of those employees who do manage to make it in to work.
Howard Lewis-Nunn, barrister, Howard Kennedy
Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail dawn.spalding@rbi.co.uk
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