Travel delays and disciplinary matters

Traffic jams, cancelled trains, late-running buses…

Whatever the cause, there’s no denying that travel to work can be a frustrating process and that’s just when employees arrive flustered but on time. What happens if those delays mean that staff members either arrive late or can’t get into work at all? How should employers handle this?

There are usually three categories of lateness and it’s important that employers can distinguish between them in any policy they establish:

1. An isolated instance that has arisen because of genuine travel disruption (it is likely that more than one member of staff will have been affected by this). 2. Repeated instances of lateness for which the member of staff adduces travel problems although in reality, this is not the case. 3. Lateness that is actually caused by travel problems but which nevertheless causes disruption in the workplace that is, ultimately, unacceptable.

The first category will seldom, if ever, count as an act of misconduct, although the circumstances do need to be genuinely outside the control of the member of staff. The employer should pursue an approach that is fair and in accordance with the existing absence policy. If the travel disruption is caused by industrial action or bad weather and affects a number of employees, a good approach might be to allow employees to work from home for the duration.

The second category can be dealt with by reference to the disciplinary policy. However, the employer still needs to gather evidence relating to the veracity or otherwise of the employee’s claims.

The third category could be classed as a disciplinary matter but because there are genuine reasons for the lateness, it is best to handle things in an informal manner to begin with. The reasons for the lateness can be explored and possible solutions suggested.

Whilst employees may be late for a number of reasons, the cause of their lateness should not be grounds for preferential treatment. A worker who is late in because of traffic problems should not be given better treatment on their arrival than someone whose lateness is due to dropping their child off at nursery.

In this example, the second employee is far more likely to be female and treating her less favourably might lay the employer open to a sex discrimination claim.

If an employee who has a medical condition finds that it affects their ability to wake up on time, their condition may count as a disability and therefore the employer will have to look into making reasonable adjustments for them, which could include a later start and finish time than the rest of the workforce. That obligation will not extend to workers who have trouble getting in on time because of traffic or transport considerations.

If there are persistent problems on a particular route to work or a certain method of travelling, the employer may be tempted not to hire people who have to use that route or method. There is, on the face of it, no question of liability attaching to this policy, but it should be considered that this may well serve to exclude people from a particular postcode or area. If that postcode or area is one where a large number of people from a particular race, religion or ethnic group live, the employer may find themselves accused of indirect discrimination.

The company should make it clear that it expects employees to take all reasonable steps to get to work on time. The consequences of failure should be explained clearly, as should the definition of ‘reasonable’.