Case update (2): Health and safety: adverse weather conditions

Summary: Does your organisation have a clear adverse weather policy in place and are employees kept as up-to-date as possible regarding any altered working arrangements during periods of adverse weather?

The EAT decision in Edwards and others v The Secretary of State for Justice, available here suggests that you should.

Facts: The employees worked at a prison. The prison had a detailed procedure for coping with adverse weather as certain roads to the prison were vulnerable to extreme weather conditions. The employees were instructed, on bad weather days, to wait in a supermarket car park until transport arrived to take them to the prison. If no transport arrived after three hours they would go home but still be paid for that day. On 18 January 2013, the employees were all due to start work at 8 am. Due to heavy snow fall, the road they usually took to the prison displayed a sign stating the road was closed. The employees therefore went to the supermarket car park, along with approximately 40 other members of staff. The prison sent some 4×4 vehicles to the car park and most of the staff travelled to the prison in those vehicles. However the employees refused to do so given that the road was closed and they were concerned for their safety. They waited until 11 am and then went home, at which time the road was still closed. The prison refused to pay the employees for that day as they had declined to be transported to the prison.

The employees brought Tribunal claims on the basis that they had suffered a detriment in breach of their health and safety rights, and an unlawful deduction from their wages.

The Tribunal dismissed their claims, saying that the employees did not have a reasonable belief that the circumstances were serious or dangerous, particularly as they had witnessed many of their colleagues make the journey without an issue. On this basis the employees were voluntarily refusing to attend work. The employees appealed.

The EAT allowed the appeal on the basis that the Tribunal had not provided sufficient reasons for its judgment. It was insufficient to find that just because other colleagues had made the journey “without difficulty or danger” the employees could not say that they had a reasonable belief in the immediate danger of their circumstances. The EAT sent back this aspect of the decision to be considered by a new Tribunal.

The EAT did, however, reject the employees’ appeal against the unlawful deduction from wages claim. The EAT found that it was implicit that the attendance at the car park was for the purpose of onward transport to work at the prison. If they rejected the transport and therefore did not work, there was no basis for paying them merely because they attended the car park.

Implications: This decision provides a reminder to businesses to ensure that they have a clear adverse weather policy in place and that employees are kept as up-to-date as possible regarding any altered working arrangements during periods of adverse weather.

The attached checklist highlights some practical steps that a business can take to reduce the risk of adverse weather affecting an employee’s travel to work.

ADVERSE WEATHER GUIDENCE

If you want any advice on the above, do not have an Adverse Weather and/or Travel Disruption Policy, or it needs updating then please do not hesitate to contact Luke Menzies at luke@menzieslaw.co.uk or 0845 113 0150 or any other member of the team.