As UK summers grow hotter, heatwaves are increasingly a fact of working life. Many employers have policies for snow and ice, but far fewer have thought about what happens when temperatures soar.
Carey Willis Fleming, Senior Associate in our Employment team, takes a look at the responsibilities employers have and what they need to know.
Your legal duties
Employers have health and safety obligations at common law, under the Health and Safety at Work etc Act 1974, and as an implied term of every employment contract. All three apply year-round – but they come sharply into focus during extreme heat.
In practical terms, if a heatwave is forecast, you cannot simply do nothing. The Management of Health and Safety at Work Regulations 1999 require you to carry out a suitable risk assessment of your employees’ work activities.
Acas (the Advisory, Conciliation and Arbitration Service) advises doing this before the heat hits and removing or reducing any risks you find – whether that means providing fans, air conditioning, cold drinking water, rest breaks, or rescheduling outdoor tasks.
Additional considerations for disabled employees
Employers should also be mindful of employees with disabilities that could be more severely affected by extreme heat or find that high temperatures worsen an existing condition.
Under the Equality Act 2010, you have a duty to make reasonable adjustments where a provision or practice – including a requirement to attend the workplace – puts a disabled employee at a substantial disadvantage.
In practice, this might mean prioritising remote working, providing additional rest breaks, or adjusting duties for those most at risk. If in doubt about what is reasonable in a particular case, take advice early.
What if an employee refuses to come in?
Under the Employment Rights Act 1996, employees have the right not to be subjected to any detriment if they leave or refuse to return to a workplace where they reasonably believe there is serious and imminent danger.
If an employee raises concerns about the heat, you need to engage with those concerns – explaining what measures you have put in place – rather than simply dismissing them. It’s advised not to penalise an employee for raising health and safety concerns as doing so could give rise to a whistleblowing claim.
Do employees who stay home get paid?
There is no single answer. It depends on the contractual position – express terms, the staff handbook, collective agreements, or an established custom and practice.
Where there are no such terms, wages are generally only payable where an employee has worked or was “ready and willing” to do so. Case law does suggest, however, that employees may still be entitled to pay where absence is genuinely involuntary.
If you send them home, or fail to provide work, they are likely entitled to be paid. Even where pay could technically be docked, employers should exercise caution as the damage to staff morale and the organisation’s reputation if this were to become public could be much more damaging.
Consider the alternatives
Rather than facing a stand-off over attendance, consider agreeing practical options with your staff:
- An earlier or later start if the morning commute is the problem.
- Flexible or remote working to make up lost time.
- Shift swaps with colleagues who can attend more easily.
- Taking the absence as paid annual leave.
What about employees with childcare responsibilities?
If schools close, employees have a statutory right to take a reasonable amount of unpaid time off to deal with the unexpected disruption of a dependant’s care arrangements (Employment Rights Act 1996).
You cannot require them to use annual leave to cover this, and you must not treat them to any detriment for exercising this right. What is “reasonable” will depend on individual circumstances.
Checklist for employers
- Carry out a risk assessment before the heatwave arrives.
- Review or draft an adverse weather policy and make sure staff know about it in advance.
- Take health and safety concerns seriously and never penalise employees for raising them.
- Explore flexible options before defaulting to a blanket attendance requirement and consider whether any disabled employees need additional adjustments.
- Check the contractual position carefully before making any deductions from pay.
- If in doubt, get advice. The risk of getting this wrong through a tribunal claim or reputational damage is real.
Thrings’ Employment lawyers are experienced in dealing with business matters that affect the workforce and has acted for both employers and employees from start-ups and SMEs all the way to multinational corporations across a wide range of employment matters. To find out how they can help strengthen your polices, and solve your disputes, please get in contact.
