Politics aside, perhaps the biggest talking point for Londoners in 2016 was travel disruption. From the ongoing Southern Rail delays to multiple tube strikes, simply getting into work became increasingly problematic for many people.

So what should employers do when their staff are late for work or cannot get in at all?

The key is to distinguish between:

  • ‘one-off’ absences due to genuine travel disruption;
  • persistent lateness where the reasons are attributed to travel problems but are probably not caused by genuine travel issues; and
  • circumstances where, even where the absences are caused by bona-fide travel disruption, the level of absence is still unacceptably disruptive.

It is not an act of misconduct where, due to circumstances genuinely beyond their control, there are isolated instances where employees are late or unable to attend work. These instances should be dealt with fairly and in accordance with an absence policy. This policy should be reviewed regularly to ensure that it is kept up to date and appropriate for the organisation and positions of the employees.

In many cases employees will be incredibly frustrated with the delays and will do all they can to get to work as quickly as possible. Therefore employers should try to be flexible and consider whether employees can work from home or at an alternative location. It may be appropriate to require hourly paid employees to make up the time missed at a later date, but if this is not possible and employees will not be paid for hours they did not work this should be made clear in the absence policy and in communications from managers.

Situations where employees are regularly late and use ‘train delays’ as an excuse can be a disciplinary matter and should be dealt with under a disciplinary policy. This is where lateness and poor attendance are falsely attributed to ‘train delays, cancellations and diversions’. It should be established that the pattern of lateness is serious, and that there is some evidence that the excuses are either false or heavily embroidered.

Persistent lateness, even where there are genuine reasons, can be potentially a disciplinary issue and should be dealt with as such. It will usually be appropriate for this to be dealt with in an informal manner in the first instance so that an employer can understand the reason for the lateness. If it persists, more formal action may be appropriate whereby employees are given a set timeframe in which to show improvement.

As far as possible, employers should try to ensure that they do not treat employees who are late for work due to travel disruption more favourably than employees who are late for different reasons, particularly childcare. To take an obvious example it could amount to sex discrimination to ‘dock’ the pay of a woman who is late because her child is unwell but not a man who is late because his train was cancelled. Similarly an employee who finds it difficult to get up early due to a medical condition may be disabled under the Equality Act meaning the employer will have an obligation to make reasonable adjustments, such as implementing a later start time. Employees who find it more difficult to get to work due to their commute do not have the same right.

There have been reports that some employers in Central London are refusing to hire people who have either a long commute or one that is reliant on Southern Rail. In itself this policy should not create any liability, but before implementing it employers should consider the consequences of being able to reject applicants for a role based on their postcode. Depending on the circumstances it could amount to discrimination to reject applications from individuals who live in an area that is predominately occupied by people of a particular race, religion or ethnic group.

As with many HR issues clear communication and consistency of treatment should be an employer’s key focus, not only to avoid potential legal liability but also to assist with the morale of the workforce. Employers should make it clear that employees are required to take all reasonable steps to get to work and be clear as to the potential consequences if they are late or unable to attend. A well drafted absence policy is a good starting point but managers should ensure they communicate with their staff on an ongoing basis and try to plan ahead as far as possible.

For further information please contact a member of our Employment Team