Storm Ophelia - employers should consider paying those who missed work

The Department of Social Protection has asked employers to "take a long-term view" when deciding whether to pay employees who missed work on Monday due to Storm Ophelia.

On Sunday night Met Éireann issued a national "Red weather warning" and advised against all non-essential travel. Most businesses either did not open or closed early on Monday, leading to confusion about whether employees have a right to payment for the missed day.

In a statement, the department indicated there is no legal obligation on employers to pay staff who missed work due to the storm. The payment of wages in such circumstances is “mainly a contractual matter between employers and employees,” it said.

However it encouraged employers to “take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of employees translates into a better working environment for both the staff and the employer.”

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The department stated that in some circumstances, for example in cases where a business did not open and employees were not given enough notice, it may be open to staff to take a case to the Workplace Relations Commission (WRC).

“Every case is fact-specific. Whether an adjudication officer would find in favour of the employee or employer would depend on the circumstances of the case, whether the business was open ... and the absence management policy of the employer. In addition, consideration would be given to other relevant factors such as the availability of public transport.”

Regarding the employment rights of parents who needed to take time off work because of school closures, the department said this was also a matter of the employee’s contract but asked employers to be accommodating.

“Many employers will have absence management policies in place to deal with such circumstances. These policies may provide, for example, for parents to work from home or for the employee to be paid for the time in question on condition that they work the time back up at a future date. Again, employers are encouraged to foster positive working relations.

On Monday several businesses such as Tesco and Starbucks were criticised for opening their branches and asking employees to attend work. Tesco later closed all stores and agreed to pay employees for the full day.

On Tuesday Taoiseach Leo Varadkar agreed to examine the introduction of guidelines for employers on their obligations during future extreme weather events.

Employment law experts told The Irish Times that an employer has no legal obligation to pay staff if they don't come to work, even if they are physically unable to make the journey.

"It's come up before when we had the big snow [in 2010]. The general thinking is if you've half a brain as an employer you'll accommodate employees. But it doesn't follow that you've an obligation," senior counsel and employment law specialist Marguerite Bolger said.

“At the end of the day, if you don’t turn up for work there is no obligation on an employer to pay you,” Ms Bolger said.

This is also the case if an employee physically can't get to work due to, for example, a flooded road or cancelled bus service, said Richard Grogan, an employment law solicitor.

“If the road from town is two feet under water and there is no way of getting to work, the law states the employer has no obligation,” he said.