Council workers told to ‘set aside holidays’ for snow days - legal analysis

Employment law expert Donald MacKinnon gives his analysis on the controversial move by East Lothian Council. Pic: contributed
Employment law expert Donald MacKinnon gives his analysis on the controversial move by East Lothian Council. Pic: contributed
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An employment law expert has weighed in after East Lothian Council controversially advised rural workers to set aside their holidays to cover absences from work, or face losing pay if another Beast from the East hits.

A revised staffing policy for severe weather absences warns that the local authority will continue to dock the pay of workers who cannot get to work if a storms hit.

READ MORE: Council workers told ‘set aside holidays’ or risk losing wages if new ‘Beast from the East’ hits

But it suggests those who live in rural communities “may wish to consider holding back some of their annual leave for events such as adverse weather”.

Councillor Jeremy Findlay, whose ward covers North Berwick coastal communities, told a meeting of the council’s cabinet on Tuesday that he had a “moral problem” with staff being penalised because they lived in rural areas.

But Donald MacKinnon, director of legal services at employment law, HR and health & safety experts, Law At Work, gives insight into the decision by East Lothian Council.

He said: “During the infamous Beast from the East of 2018, East Lothian Council caused uproar amongst its employees, and councillors alike, by advising staff that they should make their way to work during red weather warnings if it was safe to do so, despite police warnings to stay inside.

“Anger over the policy at the time meant that staff members who could not attend work had their wages reinstated. However, East Lothian Council have since revised their severe weather absence policy in the hopes of avoiding further disagreements.

“The updated policy still advises that employees who cannot fulfil their contractual obligations will not be paid but encourages those living in rural communities to consider reserving annual leave to cover such eventualities.

“Despite criticisms, and suggestions by councillor Jeremey Findlay that it is penalises those living in rural areas, the policy is within the parameters of employment law.

“While employers should not encourage employees to put themselves at risk, if an employee cannot get in the employer is not generally obliged to pay them. Conversely, an employer cannot force an employee to take a day’s holiday which under the Working Time Regulations must be a minimum of twice as many days as the number of days’ holiday to be taken. Such notice would be difficult to give in an unpredictable adverse weather scenario. The option remains open for employees to request to take annual leave on days they cannot attend the office and for their employer to grant this.

“It is only when the employer makes the decision to close the office, that they generally become void of an obligation to pay them.”

Anger over the way East Lothian Council handled last year’s severe snow storms led councillors to overturn its long-standing policy on absences and agree to pay workers who had been unable to get into work.

Many workers were stunned to be told that, while police were warning people to stay at home, the council was continuing with its established policy advising them they would have to take time in lieu or unpaid leave to cover the time they were unable to work during the crisis.

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