If You Can’t Take the Heat… – Employers’ Obligations in Extreme Weather
The recent heatwaves caused significant disruption on the railways and roads, making the commute more difficult, or even impossible, for some employees. It is not hard to imagine that similar problems may result from other extreme weather events, such as flooding or heavy snowfall. We have already considered the position where employees are unable to attend work due to travel disruption – read here for more on that issue.
But there are also concerns over whether workplaces themselves might become dangerous due to increasingly unpredictable and severe temperatures. There is no maximum or minimum temperature for UK workplaces – a group of MPs recently campaigned for a legal maximum of 30C, but there is no indication that this will be made law anytime soon. As it stands, the only legal requirement on employers in this context is to keep indoor workplace temperatures “reasonable”, under Regulation 7(1) of The Workplace (Health, Safety and Welfare) Regulations 1992. Employers also have a duty to ensure the health, safety and welfare of employees, under section 2 of the Health and Safety at Work Act 1974 (the HSWA Duty).
Serious failure to comply with the HSWA Duty may lead to HSE taking enforcement action in the courts – this can result in an unlimited fine and a maximum of two years’ imprisonment.
The Health and Safety Executive (HSE) have recommended that employers respond to the recent high temperatures by introducing ventilation and air conditioning. They have also said that employees shouldn’t be asked to work in temperatures below 16C – so it would be advisable to ensure that your workplace is properly insulated and heated for winter.
In addition to ensuring compliance with Health & Safety regulation, one of the primary concerns for employers will be whether requiring employees to attend the workplace during extreme weather will put the business at risk of employment tribunal claims. Under s.100(1)(d) Employment Rights Act 1996, an employee will have a claim for automatic unfair dismissal if they are dismissed principally because they left, or refused to attend, the workplace in circumstances of danger which they reasonably believed to be serious and imminent.
If the heatwaves we have seen this summer become a more severe and regular occurrence, it would not be surprising if many employees refuse to attend work. The debate of whether it is reasonable for an employee to refuse to attend the workplace if temperatures hit such heights again, due to a perception of serious and imminent danger, particularly if said workplace is not properly air conditioned or ventilated – could cause plenty of headaches for employers.
How can employers mitigate the risk of a s.100(1)(d) claim then? The most obvious option would be to not dismiss these employees at all, providing them the leeway to miss days of work during extreme weather events. But this would undoubtedly create productivity and workload issues and may therefore be an undesirable option. However, where the nature of work duties allows, permitting employees to engage in flexible and remote working may be an ideal middle ground, whereby employees can avoid the dangers associated with attending the workplace, while employers maintain levels of work capacity.
If employers are keen for employees to continue attending the workplace during periods of extreme weather, then it would be wise to make the working environment as hospitable as possible in preparation for such occasions. As considered above, ensuring that your premises are properly insulated and heated for winter, and adequately air conditioned and ventilated for summer, should be a priority for employers looking to retain cautious employees. From an employee relations perspective, having a workplace that provides for comfortable working conditions and temperatures is unlikely to be seen as a bad thing.