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With the mercury soaring across the UK this week, many workers will be facing uncomfortable working conditions. Employers similarly will be considering what impact extreme heat might have on their workplaces and what measures they can take to mitigate the impact. With climate change only set to increase the frequency of extreme heat events in Europe over the coming decades, all employers will need to think more carefully about how to mitigate the impact of heat on their staff and workplaces.

Health and Safety Duties Towards Employees

Employers have a general legal duty to provide a safe working environment for their employees, and safe working temperatures form part of this duty. The duty is a “qualified” one, so employers are only required to balance the risks in any particular job with the cost and effort required to remedy the risk. So generally speaking, extreme heat is not a particularly large risk to most office workers, and so small mitigating steps might be justified – e.g ensuring access to drinking water, buying fans or allowing staff to start earlier in the day to avoid working during the hottest periods.

Extreme heat is of course more of a concern for those working outside, for those with physically demanding jobs, and those whose jobs already involve a lot of heat, such as bakers. In these workplaces greater precautionary measures may be required, such as stopping work or more expensive investments in equipment (like air conditioning) to minimise heat.

At present there is no maximum working temperature (though some are campaigning for a change to the law in this area) – but the Health and Safety Executive (HSE) publishes guidance on assessing the risks of heat stress, which we link to at the bottom of this article. All workplaces should consider conducting a heat stress risk assessment, but this is particularly so for those operating in the higher risk environments mentioned above.

Criminal Enforcement of Duties

It should be noted that the Health and Safety at Work Act 1974 (HSWA 1974) imposes criminal liability on directors, managers and employers if they fail to protect the health and safety of their employees. Prosecutions are brought by the HSE and can result in an unlimited fine or a sentence of up to 12 months’ imprisonment. This is obviously reserved for the most serious cases, but if there had been a continued failure to remedy foreseeable extreme heat stress in a workplace, and this failure resulted in serious injury or death, then criminal charges could result.

The HSE has numerous powers of investigation which it can use to investigate workplaces and verify compliance with health and safety law and regulations. If it finds that there are breaches, it can serve an Improvement Notice or a Prohibition Notice. Improvement notices are for more minor breaches, and require an employer to make improvements to practice or equipment within a specified period. Prohibition notices are for more serious breaches, and require a complete stop to a specified activity until the breaches are rectified. Non-compliance with these notices is a criminal offence. Employers can appeal these notices to the Employment Appeal Tribunal.

Civil Enforcement of Duties

Prior to 2013, many regulations (such as the Management of Health and Safety at Work Regulations 1992) carried strict civil liability – if a worker (or indeed a customer or contractor) was injured and that injury was caused by a breach of the regulations, they could successfully claim compensation for their injuries from the employer. Reforms introduced on the 1st of October 2013 have improved the position for employers, and liability is no longer strict – however it is still the case that if a claimant can show that an employer failed to comply with regulations and this resulted in a foreseeable injury, they will have a good chance of succeeding in a personal injury claim.

Employees are also legally protected from detriment or dismissal because they raised concerns about health and safety at work. In certain cases, an employee may stop a particular activity if they have a reasonable belief that serious harm may result – so in an extreme case, workers doing harsh physical work outside without adequate access to shade or drinking water might reasonably down tools to avoid heat stress. Employers could not dismiss these workers or subject them to any detriment (such as disciplinary action). Employees who are disciplined or dismissed for such actions have the right to make a claim in the Employment Tribunal.

Disabilities

In addition to general duties, the Equality Act imposes particular duties on employers and service providers to make adjustments for those with disabilities. Heat can have a greater impact on those with pre-existing conditions. In addition, a recent focus on the effects of menopause (which several Employment Tribunal decisions have confirmed is a disability for the purposes of the Act), has highlighted the need for better cooling equipment at work to alleviate some of the effects of menopause.

Employers are under a duty to make reasonable adjustments for employees in order to alleviate the effect of disabilities. In the case of heat this might include better air conditioning or flexible working patterns.

A point to note for employers – whilst general health and safety duties allow employers to balance risk with the costs of implementing any safety measure, cost alone cannot justify an employer refusing to make an adjustment for a disabled worker. However cost can form part of the employer’s case for refusing an adjustment, or for proposing a different adjustment to the one requested, if there are other additional factors that make the proposed adjustment impractical.

Summary

Employers are under a general duty to protect health and safety at work, and this includes not exposing workers to excessive heat. This duty is qualified, so an employer need only consider measures which are justified in relation to the particular risks of their workplace – most workplaces will not need to consider extensive measures to protect employees from heat.

Employers also have a particular duty to disabled employees, who might also suffer more from the effects of heat. Any refusal of adjustments for disabled workers cannot be justified by cost alone – but proposed adjustments must be proportionate, and employers can justify refusals to make adjustments on the grounds that they are impractical.

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Post Author: Oliver Winters

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