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Did You Predict the Riots?

31st August, 2011

Employers would be forgiven for not predicting the shocking and abhorrent behaviour of so many individuals in their display of extreme civil disobedience across the country this month. With family businesses and high street chains going up in flames, burning to the ground, and numerous other businesses closing due to riot damage, many unsuspecting employees will have been faced with not being able to get to work. These events act as a reminder to employers of the importance of planning for extreme situations.

Unable to get to Work?

The general rule that employers must adhere to is that they can require employees to undertake work for which they are contractually bound (and, as such, to attend work). However, as employers, you are responsible for the health and safety of your employees and in situations of real and imminent risk of danger, employees can legitimately refuse to attend work.

As you will recall from our article in the winter regarding adverse weather conditions, an employee who is not able to work through travel or other disruption is not entitled to be paid, unless the contract provides otherwise or where custom and practice has dictated that an employee is entitled to be paid. It may be possible to offer a compromise, such as working from home, taking annual leave or some other form of permitted leave at short notice. Whether this leave is paid will depend on the type of leave in question.

Where the workplace is closed and the employee is unable to attend the workplace or work from home (assuming there is no alternative place of work), but employees are both willing and able to work, they are entitled to be paid. However employers must be reminded that this is subject to one exception; where there is a contractual right to lay off without pay. An employee may then be entitled to claim a guarantee payment (£21.20 per day for up to 5 days in any 3 month period).

Frustration?

Where there are no alternatives to enable an employee to return to work, another situation may arise. Where an unforeseen event takes place which makes the performance of the contract impossible or radically different from what the parties originally intended, a contract may be deemed to be frustrated. This operates to end the contract automatically “by operation of law” without dismissal or resignation and would prevent the employee from claiming unfair dismissal or any entitlement to notice. In this case, the only payment that may be claimed is a redundancy payment on the basis that dismissal is deemed to have been made by reason of redundancy where a frustrating event affecting the employer operates to terminate the contract (section 136(5) Employment Rights Act 1996).

However, Employment Tribunals have always been reluctant to deem a contract terminated by operation of law due to frustration in all but rare cases. However the destruction of an entire workplace, which has been the result of some of the riots, may well be deemed to frustrate the contract and amount to a dismissal only for the purpose of claiming redundancy pay.

Practical Tips

Employers should therefore take note of the following:

• Always consider health and safety risks and undertake appropriate assessments.

• In situations of real and imminent danger, consider whether employees are able to work remotely or whether hours of work need to be adjusted to avoid danger.

• You are only obliged to pay employees for work provided. If employees are unable to work then you are not obliged to pay them (subject to any contractual provisions). However issues of morale need to be considered, along with whether or not to be flexible in terms of other options such as: annual (or other forms of) leave and/or adopting flexible working hours.

• Check your contracts and ensure that you have a valid lay off clause within them.

For further advice on any of the issues raised in this article, please do not hesitate to contact Claire Brook, Partner, Employment Team at [email protected]

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