Flooding prompts HR advice for businesses

Unfortunately the Christmas period saw significant flooding across Lancashire, Yorkshire, Cumbria and Scotland with serious damage and devastation to family homes, communities and businesses.

By Oliver McCann, employment partner, Napthens Solicitors

Many businesses, across all sectors, have been affected and the cost of repairing the damage is estimated to be in the billions of pounds.

There is no quick fix either for either families or businesses as flood damage can take months to sort out in terms of drainage, dehumidifying a property, restoration work, redecoration and so on.

We have had a number of clients already seeking advice on the HR and employment issues arising from their business being flooded and the need to close the business for a temporary period. In particular, what are the options if they either don’t have work to provide to staff or can’t afford to pay them for a temporary period?

Employee’s are entitled to be paid if they are ready and willing to attend work pursuant to their employment contract, even if the employer is unable to provide work due to a down turn in work or as a result of a natural event like flooding or even a fire at the workplace.

So what HR options are available to employers who need to address staffing issues as a temporary measure until the business is back up and running?

Lay-offs and short time working

A lay-off is where you send the employee home and do not provide any work to them with the result that they are denied the opportunity to earn their normal wages. Short time working is where there is a reduction in the work provided by the employer such that the normal pay for any week is less than half a week’s normal pay.

To implement lay-offs or short time working, it is essential you have a contractual right to do so or that you mutually agree this with an employee. Absent such a right, a unilateral decision to lay off or place on short time working would be a breach of contract and give rise to potential claims.

Mutually agree a reduction in hours

For those on fixed hour contracts – absent a lay off clause – you may, following consultation and discussion with staff, be able to agree to a reduction in working hours to reduce the pressure on the wage bill for a temporary period.

Reduction of hours of those employed under zero hour contracts

This is subject to the contract being a genuine zero hour contract and there been no factual relationship over a period of time which gives rise to an implied right to a minimum number of hours per week

Give notice to employees exercise holiday leave during workplace closure

The Working Time Regulations 1998 do give the right to employers to give notice to employees specifying when to take annual leave. The notice provided must be twice as long as the period of leave to be taken, for example, one week’s holiday leave would require two week’s advance notice.

Redundancy

This would usually be the last consideration where ideally you wish to retain your staff wherever possible.

Other issues can arise such as the business being operational but individual employees having been affected by the floods and needing time off to deal with matters arising from this. Where employees are unable to attend work, employers may consider the following arrangements:

• Home working
• Flexible working i.e. coming in late, leaving early, condensing extra hours into the working day to accrue time off later in the week.
• Taking unpaid leave
• Using annual leave.

The best advice we can give is not to make any hasty decisions. Take advice, explore all the options provided, consult with your staff, liaise with your insurers and identify what labour needs to be retained to deal with the clear up and provide limited ongoing services. Only then can you make a decision which achieves your objectives.