It is finally cold, really cold in the Netherlands. Secretly, everyone may already be looking forward to a skating competition in the neighbourhood or that snow fight with the neighbours. Winter weather also raises a number of employment law questions.
Due to these weather conditions, for instance, an employee may not be able to show up at work or not on time. Think of (too) slippery roads and problems on the railways. Is the employee entitled to wages in these cases?
UNABLE TO COME TO WORK?
The basic principle is that an employee should simply appear at work (on time), even if this seems almost impossible due to the weather. After all, commuting is, in principle, the employee’s own responsibility. This may be different if there is a force majeure situation. The (only) circumstance of bad weather – especially if it is announced – does not constitute force majeure.
Our advice is therefore always to consult with each other to find a suitable solution together. Perhaps the employee can work from home just fine – since corona is the standard in most cases anyway – and therefore there is no need to come to work at all. Of course, this is not possible in all cases. In those cases, if the employer requires the employee to come to work anyway then, in principle, the employee is also obliged to come. If, as an employee, you subsequently fail to come then this may affect the right to wages.
The above is coloured by the concepts of good employeeship and good employership. A number of things are expected from both the employer and the employee in this situation. For instance, the employee must do everything possible to try to still get to work, but the employer will also have to do its best to accommodate the employee and help as much as possible. Think, for example, of a change of schedule or arranging the work so that it can be done (temporarily) from home.
Does a collective agreement apply? Check it for specific regulations on continued payment of wages in bad weather. After all, the Unworkable Weather Regulation allows you to agree by collective agreement the circumstances under which it is not possible to work due to weather conditions. If the applicable waiting days for this have expired, there may even be a lapse of the continued payment of wages obligation and entitlement to WW benefit .
CODE RED, ORANGE AND YELLOW
If an employee cannot reasonably be required to travel to work because of the weather conditions, that employee is simply entitled to continued payment of his/her wages because this then falls within the employer’s sphere of risk.
If KNMI or the central government – like last Sunday all day and Monday morning – issues Code Red, an employer cannot (in principle) reasonably require an employee to travel to work. After all, the urgent advice then is to stay home. At Code Yellow, however, an employee will usually be required to travel to work. In terms of employment law, Code Orange in particular raises the most questions. After all, even then the advice is to stay home, if possible. Whether an employee can still be required to travel to work in those circumstances will have to be assessed on an individual employee – and employer basis.
In other words, whether the employee is entitled to wages always remains dependent on the circumstances of the case. What is clear is that both the employer and the employee should be expected to play an active role. In doubt about how to deal with this? If so, feel free to contact us.