In the Press

Clare Davis writes for Personnel Today on hot weather and employment law

In an article for Personnel Today, Clare Davis, Senior Associate, looks at some of the quandaries faced by employers during a heatwave. 

What if everyone wants to come to the office to benefit from air conditioning?

Post-pandemic hybrid working arrangements mean there are no longer sufficient hot desks for everyone …

Some organisations no longer have enough work space for all their employees because of post-pandemic hybrid working. Employees will weigh up the advantages of office air-conditioning versus their experience of the commute. Depending on how organisations operate their hybrid working arrangements, this could lead to a surge in demand for hot desks.

The contract of employment should govern the locations where an employee is required to work and has a right to work. Employees generally have the right to attend their workplace, unless their home is their designated place of work. If there is no space for them in the office, employees could claim they do not have to work that day as a result. Employers may wish to pre-emptively encourage employees to work from home where possible in hot weather, not least so they can avoid a potentially disrupted and uncomfortable commute.

What if energy costs are so high that firms keep the office closed?

An employer can change an employees’ place of work, either by using any right to do so already contained in the contract of employment or otherwise by consent or by having to vary the contract

As illustrated by the flexibility shown by employees during the pandemic, employees may be understanding and willing to work from home to help the business to survive during a crisis, at least in the short term. It is even arguable that such flexibility during an emergency may have become an implied term of the underlying contract of employment. However, an employee who is not obliged to work from home and cannot or refuses to do so could claim salary. If the closure is intended to be permanent, any such proposal could trigger a workplace closure redundancy situation and, where 20 or more employees are affected, collective redundancy consultation obligations and notification to the secretary of state with Form HR1. Failure to comply with collective consultation obligations can lead to awards of up to 90 days’ full pay be awarded to each affected employee. Failure to submit Form HR1 is a criminal offence.

Should dress code requirements be relaxed?

What to do when an employee takes things a step too far and dresses inappropriately for the workplace. Are summer dress code relaxations discriminatory on grounds of sex, if women have greater choice of cooler clothing than men?

Employers may consider relaxing usual standards of dress due to hot weather, but they should remind employees to dress appropriately for their workplace. Where employees are not allowed to wear shorts at work, this could potentially give rise to a discrimination claim where women are allowed to wear skirts that do not cover their knees.

The no shorts rule may put men at a disadvantage, and lead to them being too hot or uncomfortable at work, whereas women could wear skirts. If there is air-conditioning, it may be hard for men to establish the disadvantage, but if there is no air-conditioning it may be difficult for an employer to objectively justify the rule. Employers may need to consider why their employees cannot wear shorts at work.

Travel disruption

If an employee cannot get to work because transport is disrupted, or a travel warning is issued, how should this leave be treated, and should it be paid?

If employees are required to attend their workplace, but are unable to travel because transport is disrupted, or a travel warning is issued, and they cannot work from home, those employees may not be entitled to be paid. Employers may wish to remind employees in advance of any potential travel disruption and advise them to consider alternative travel arrangements.

Disciplinary action may be appropriate if this absence is part of a pattern of existing behaviour of pulling sickies, late attendance or skiving off early. For a one-off instance beyond the control of the employee, disciplinary action would be harsh and an employee might seek to claim constructive dismissal if they are disciplined.

Reduced productivity

And what if sickness absence increases because workers are too hot?

In very hot weather workers may call in sick or simply be less productive as they need more regular breaks and feel sluggish, especially if the workplace is too hot. Employers owe a duty of care to their employees, which includes taking reasonable steps to provide a safe workplace and a safe system of work, so employers should be mindful of these duties and allow breaks where necessary and ensure workers can stay hydrated and work in a comfortable temperature, as far as possible.

The hot weather may also have a greater impact on workers with certain disabilities, so if organisations seek to performance manage or discipline workers for their productivity drop or sickness absence, employers should consider their duty to make reasonable adjustments.

The full article was first published in Personnel Today here.

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