BY: Mark Stevens is a senior associate at VWV LLP.
The climate can play havoc with the workplace and the wrong temperature can affect productivity. But with extreme weather apparently becoming more common, employers need to understand the impact that different conditions can have on their employees and take steps to ensure that employees are protected where necessary.
Temperature
The Health and Safety Executive (HSE)'s Code of Practice suggests a minimum temperature of 16 degrees Celsius in an indoor workplace (13 degrees Celsius if the work involves rigorous physical effort). In addition to bearing in mind the legal minimum, employers should also carry out risk assessments to identify any specific issues that might arise from working in cold conditions.
[caption id="attachment_30102" align="alignright" width="300"] There is no legal maximum working temperature in the UK (Pic: Generative)[/caption]
There is, however, nothing set down in law for a maximum working temperature.
MP's have previously called for a limit to be introduced. In 2016, a motion was called in parliament calling for the government to limit temperatures to 30 degrees Celsius, or 27 degrees Celsius for more strenuous work. The motion suggested that employers would have to introduce control measures, such as breaks, access to water or air conditioning in the event that the above thresholds might be met or exceeded. The motion has not found its way into statute, however.
In the meantime, employers should be aware of the effects of heat stress on employees and look to reduce the risks where possible by removing or reducing sources of heat. Practical steps suggested by the HSE include controlling the temperature; providing mechanical aids; preventing dehydration; providing PPE; training; acclimatisation; identifying those at risk; and monitoring health.
Identifying those at risk is likely to be important. In particular, employers need to be aware of their obligations in the Equality Act 2010, particularly with reference to the obligation to make reasonable adjustments in respect of any elements of a job which places a disabled person at a substantial disadvantage compared to someone who is not disabled. It may be that additional measures or actions need to be put in place to combat the challenges posed by working in hot conditions. Again, a risk assessment would be appropriate in order to recognise risks and identify measures to reduce or avoid those risks.
More generally, employers must be careful to consider health and safety issues. Section 44 of the Employment Rights Act 1996 gives employees and workers the right "not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that:
In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work; or
In circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."
This protects employees against, amongst other things, being subjected to a detriment (such as losing pay) when they leave the workplace or propose leaving the workplace where they reasonably believe there to be serious and imminent danger. This might include circumstances where an employee reasonably believes that the temperature in the workplace is so low or high as to create serious and imminent danger.
Managing a reduced workforce during periods of bad weather
It is important for all employers to have a strategy in place to deal with the effects of a reduced workforce on a bad weather day, as well as HR and payroll issues that follow on.
Employers should adopt a policy which makes expectations clear. It might confirm that it is the responsibility of all employees to make every effort to attend work - even in exceptionally severe weather conditions or where other unusual travel difficulties arise such as rail strikes. These efforts may include taking a different route to work or using alternative transport, such as lift sharing, public transport, or walking.
Policies might also state that employees should listen out for information about local conditions and transport services; detail the circumstances in which working from home will be authorised; and when absences will be paid or unpaid.
To manage risks, the policy should be clear that it does not expect employees to put their own or others' safety at risk. Where severe weather is forecast or other travel difficulties are expected, employees should (if possible) make suitable plans for travel and work in advance.
There is no automatic right to payment for time lost due to severe weather conditions or other travel difficulties - the terms of the employment contract should be reviewed to understand the specific position. Generally, employees who find it impossible to reach the office and who cannot work from home will usually be expected to take annual leave. Employers may also suggest that if an employee does not want to take annual leave or unpaid leave that they make up the lost time on other days.
That said, careful consideration should be given to what payments should be made to employees who do not attend work because of bad weather. Reducing pay may create animosity between employees who were able to work from home and still be paid and those who were not and lost out. There may also be a risk of creating negative publicity by reducing pay for reasons outside of an individual's control. In its guidance in relation to this issue, ACAS says "the handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled."
Where employees are faced with childcare issues due to school closures, this is likely to constitute a domestic emergency entitling the employee to take unpaid leave in order to look after their children or other dependents. Employees are entitled to a reasonable amount of time off to deal with the emergency. There is no obligation on an employer to pay an employee during emergency leave.
Best practice
Employers should risk assess the workplace, paying specific attention to risks that arise from employees working in hot or cold conditions.
Employers should develop a strategy for dealing with travel disruptions. It is important that a bad weather policy is finalised and made available to employees prior to the event. In this way, employees will understand in advance their employer's approach and the consequences of their absence.
Wherever possible it is advisable to collaborate with employees and they should be appreciative of those who have made the journey in and seek to agree alternative working arrangements with those who cannot attend. Such arrangements could include remote working, making up hours at another time, or working from another location.
Mark Stevens is a senior associate at VWV LLP.
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