The law on working during a heatwave

Today’s Blog for once is not directly about tax and was prompted by a spate of recent of questions I’ve had from clients, regarding the responsibilities of employers to their staff during a heatwave.

We are now at the end of the fifth heatwave of the summer with temperatures in many places topping 35C for several days. But before we go any further, what is the government definition of a heatwave?

What exactly is a heatwave?

According HM Gov, the temperature in the UK, above which is considered to be a heatwave, very much depends on which part of the country you’re in as there are different criteria depending on regional climate norms which are:-

• Scotland, Northern Ireland, Wales, south-west England, and northern England = 26°C
• Eastern England, Lincolnshire, and the West Midlands = 27°C
• Home Counties and the southern and eastern parts of central England = 28°C
• The Greater London region = 26°C

A British heatwave is officially declared when a location records daily maximum temperatures meeting or exceeding the specific threshold set for that region, for at least three consecutive days.

As well as the heat, another adverse weather issue for some employers to consider is rain, which has been notoriously absent in recent weeks, with the Met Office stating that England has thusfar recorded its driest July and August since records began, but which could well be an issue when the rainclouds appear.

What are businesses’ obligations towards their employees?

The Health and Safety Executive (HSE) provides the official guidance which advises the following;

• Normal indoor work: temperatures must normally be a minimum of 16°C.
• Where rigorous physical effort is involved, the temperature is set at 13°C (because workers generate their own body heat).
• There is no maximum limit for work temperatures in UK law.
• The HSE has no specific rules or laws that ban working in the rain or set a specific weather cutoff. However, general health and safety legislation requires employers to assess risks, protect workers from hazards like slips and cold stress, and provide appropriate clothing and equipment.

What does the law say?

There isn’t a maximum or minimum working temperature which obliges an employer to immediate stop their staff from working. That being said, employers could be breaking the law if the temperature in the workplace is ‘unreasonable’ for more than a relatively short period of time, usually considered to be 1 hour

Under section 44 of the Employment Rights Act 1996, employees cannot be subject to a ‘detriment’ or dismissal if they refuse to work or attend the workplace where they think conditions pose a serious and imminent danger to their health. If you think that’s the case, you will have to tread carefully when dealing with them. The key phrase in law is that temperatures in the workplaces should be ‘reasonable’ and there is a general duty of care on employers to keep employees safe whilst working.

Rules for remote and vulnerable workers

Employers have a duty of care towards their remote workers; just because they are not on site, does not mean that this duty does not apply. Part of this duty is staying in regular contact with remote workers aa you’re under an obligation to check that they have what they need to work safely.

It may be that attending the workplace would be more comfortable for remote workers during the hottest weather, for example if the office has air-conditioning. If practical to do so, you should discuss alternative measures with them and see if arrangements can be made to accommodate them onsite temporarily.

Those living with long term health conditions, disabilities and pregnant staff may be more affected by the heat. You should speak to them to find out any additional needs they have during the hottest weather. This could include taking more breaks throughout the working day, moving to cooler areas of the workplace or work from home / onsite temporarily, if possible, but the employee must agree to the proposed change.

Transport disruption

Issues with public transport can arise during periods of the hottest weather, such as trains going slower to prevent tracks from buckling, or heat-related issues on the roads. Employees should be encouraged to plan ahead, make allowances for delays and make alternative plans, if possible, which could involve taking an alternative route and/or adjusting start / finish times.

In extreme cases, such as road closures or rail suspensions, possibly due to track buckling, you must make available what they need to work from home for a temporary period (where possible) should they not be able to travel at all.

Unauthorised absences

When the weather is excessively hot, there may be issues with employees being unexpectedly absent from work, perhaps claiming that they are sick, or requesting annual leave retrospectively and not waiting for it to be approved or denied.

If that happens, it’s important not to jump to conclusions, but talk to your employees to see if alternative working arrangements can be implemented. If having investigated the situation you are satisfied that their absence is not for a genuine reason, then and only then, can you consider disciplinary action.

Accountant’s view

The problem facing all employers in times of extreme weather, is that there isn’t a statutory rule book to work from, with any action taken being potentially liable to be challenged by an employee. Yes, there are plenty of guidelines, but very few hard and fast rules.

Having looked at a number of Employment Tribunal decisions on the subject, the consensus demonstrates that if you as the employer can demonstrate that you have taken all reasonable steps to resolve the problem, which are subsequently rejected by the employee, you will be on solid ground. But don’t forget, you must document any disputes with an employee, just in case!