Monday, November 20, 2017
As published in the Sunday Business Post on Sunday 19th November 2017.
While getting an unexpected day off work may have been welcome to some workers during the storm, getting paid for that day is another matter.
In the wake of recent major weather events like Storm Ophelia, one of the questions employers will have to grapple with is whether they are obliged to pay employees who were unable to attend work.
To some extent, the storm caught the country by surprise and many employees arrived at work on Monday to discover that bus, rail and tram services would cease within a matter of hours, potentially stranding them. Other employees elected not to take the risk in the first place. Ultimately, many businesses nationwide closed for the day.
So what is the position in relation to salaries?
As a general principle, an employer is only obliged to pay an employee for work done. In simple terms, like any contractual relationship, you get what you pay for – and vice versa. If a service isn’t provided, the employer doesn’t have to pay.
Hurricanes don’t affect the employment relationship very often, but a common example of the lack of obligation to pay for services not provided can be seen in the context of sick leave.
An Irish employer is under no obligation to pay an employee who is unable to attend work because of illness. An employee with sufficient PRSI contributions can claim sickness benefit from the state, but that is outside of the employment relationship.
It is not uncommon for Irish employers to allow for a few days of paid sick leave per annum, but the critical point is that employers are under no legal obligation to do so.
The same is true of the majority of other absences from the workplace. An employer isn’t obliged to pay employees during maternity leave, parental leave or any of the other forms of special leave available to their employees. The one minor exception is that an employee is entitled to be paid during force majeure leave, but this is subject to a cap of three days annually.
In the case of Ophelia, an employee who was unable to attend work because of the storm will have no automatic entitlement to receive a day’s pay. It could be argued that this is unfair to an employee where non-attendance is entirely outside their control. If you can’t physically get to work through no fault of your own, there is little you can do about that.
The bottom line is, however, that the employer did not receive the benefit of the employee’s services and, therefore, is under no legal obligation to pay a day’s wages.
But what about the situation in which the employer decides to close the office?
This is more nuanced and could raise some interesting questions. Take the situation where an employee (for example, one who lived extremely close to their place of work) arrived at 9am, but was prevented from carrying out their duties because their employer had unilaterally made the decision to close the office.
In this case, it’s the employer who has prevented the employee from providing services. In that situation, an employee would have grounds to argue that they are entitled to be paid – they were available for work, after all.
In those circumstances, an employer might try to argue that the decision to close the office was taken in the employee’s best interests. Much has been said in the last few days about an employer’s obligations under health and safety legislation – among other things, all Irish employers must take reasonable steps to protect health and safety.
An employer in this situation is likely to argue that the office was closed due to circumstances beyond their control, and that there were no steps they could take to sufficiently mitigate the risk of an employee coming to harm as a result of the storm if they attempted to come to work. Therefore, the employee doesn’t have an automatic entitlement to be paid.
However, ultimately it’s more likely that a tribunal would take the view that if an employee was present to work, but was prevented from doing so, the employer must take the hit and pay the employee.
Another question is whether an employee who worked from home on Monday is entitled to be paid. An employer who attempts to avoid paying an employee who genuinely provided services, albeit remotely, on Monday will likely find it difficult to defend such a claim. Only certain occupations, primarily office-based, are suited to home working in the first place. A retail worker, for example, could not work from home.
An employee who faces an obstinate employer will be in a fairly strong position to argue that they ought to be paid, if they are able to demonstrate to their employer that they provided services from home.