Chester 01244 405555

Grosvenor Court
Foregate Street Chester
Cheshire CH1 1HG
DX: 19990 Chester

Shrewsbury 01743 443 043

Lakeside House
Oxon Business Park
Shrewsbury SY3 5HJ
DX: 148563 Shrewsbury 14

Airport City, Manchester 0844 800 8346

Office 129
Manchester Business Park
3000 Aviator Way
Manchester M22 5TG

Send us a message
Our Offices

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).


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]

You might also be interested in...

Villiers v Villiers (2018) EWCA Civ 1120

3rd July, 2020

Brief Background Mr & Mrs Villier married in 1995, and lived in Scotland together until separation in 2012. Once separated, the wife moved to England, but the husband remained living in Scotland. In July 2013 the wife issued a divorce petition in England, but in October 2014 the husband lodged a writ for divorce in Scotland. As the... Read More »

Why claiming inheritance tax relief is not simply horseplay

1st July, 2020

Agricultural property relief from Inheritance Tax has long been a valuable relief for estates, which when available can... Read More »

Governments Calls For Responsible Contractual Behaviour – What Does This Mean For You?

29th June, 2020

In May 2020 the UK Government released additional guidance in connection with the Covid-19 pandemic, this time in... Read More »

Contact Us
Secured By miniOrange