With temperatures over 30C+ in the UK and Mediterranean-like summers set to become the norm, employment lawyer Clare Davis looks at some of the dilemmas facing employers during a heat wave.
What if everyone wanted to come to the office to benefit from the air conditioning?
Post-pandemic hybrid work arrangements mean there aren’t enough hot desks for everyone…
Some organizations no longer have enough workspace for all of their employees due to post-pandemic hybrid working. Employees will rate the benefits of office air conditioning against their commute experience. Depending on how organizations manage their hybrid working arrangements, this could lead to increased demand for shared offices.
The employment contract should govern where an employee is required to work and has the right to work. Employees generally have the right to go to their place of work, unless their home is their designated place of work. If there’s no room for them in the office, employees might pretend they don’t have to work that day. Employers may want to preemptively encourage employees to work from home when possible in hot weather, especially to avoid a potentially disrupted and uncomfortable commute.
If there’s no room for them in the office, employees might claim they don’t have to work that day.”
What if energy costs are so high that companies keep the office closed?
An employer may change an employee’s place of employment, either by using any right to do so already contained in the employment contract, or otherwise by consent or by having to modify the contract.
As illustrated by the flexibility shown by employees during the pandemic, employees can be understanding and willing to work from home to help the business survive during a crisis, at least in the short term. Arguably, such emergency flexibility may have become an implied term of the underlying employment contract. However, an employee who is not required to work from home and who cannot or refuses to do so could qualify for a salary. If the closure is intended to be permanent, such a proposal could trigger a situation of dismissal of closure of the workplace and, if 20 or more employees are affected, obligations of consultation in the event of collective dismissal and notification to the company secretary. Statement with the HR1 form. Failure to comply with collective consultation obligations may lead to the allocation of up to 90 days of full compensation to each employee concerned. Failure to submit the HR1 form is a criminal offence.
Should dress code requirements be relaxed?
What to do when an employee goes overboard and dresses inappropriately for the workplace. Are summer dress code relaxations discriminatory on grounds of gender, if women have a greater choice of cooler clothes than men?
Employers may consider relaxing normal dress standards due to warm weather, but should remind employees to dress appropriately for their workplace. When employees aren’t allowed to wear shorts at work, it could potentially lead to a discrimination complaint where women are allowed to wear skirts that don’t cover their knees.
The no shorts rule may put men at a disadvantage and cause them to overheat or be uncomfortable at work, while women could wear skirts. If there is air conditioning, it may be difficult for men to establish disadvantage, but if there is no air conditioning, it may be difficult for an employer to objectively justify the rule. Employers may need to ask why their employees can’t wear shorts to work.
If an employee cannot come 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 go to their place of work, but cannot travel because transport is disrupted or a travel warning is issued, and they cannot work from home, these employees may not not have the right to be paid. Employers may wish to remind employees in advance of any potential travel disruptions and advise them to consider alternate travel arrangements.
Disciplinary action may be appropriate if this absence is part of an existing behavioral pattern of pulling sick, attending late, or ducking early. For an isolated case beyond the employee’s control, disciplinary action would be severe and an employee could seek constructive dismissal if disciplined.
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 it is too hot in the workplace. Employers have a duty of care to their employees, which includes taking reasonable steps to provide a safe workplace and a safe work system. Employers should therefore be aware of these obligations and allow breaks if necessary and ensure that workers can stay hydrated and work in a comfortable temperature, where possible.
Hot weather can also have a greater impact on workers with certain disabilities, so if organizations seek to manage performance or discipline workers for reduced productivity or sickness absence, employers should consider their duty to make reasonable adjustments.
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