In employment law circles there appears to be a rule that any employment law legal firm is, once we enter November, an annual requirement to publish an ‘employment law issues with Christmas parties’. Based on recent media coverage there is a new rule developing to accompany it – articles on ‘what is the maximum temperature a worker is required to work in in the UK?’ or ‘is it too hot to work?’
At risk of becoming overused though it may be the current heatwave means the question is still a relevant one.
One thing that is certain is the experience of this week will raise the profile of excessive heat as a health and safety risk and among unions who are recognised for collective bargaining and protocols will be sought with employers. Even before this week’s heatwave the death toll among Qatari workers has emphasised the risk working in extreme heat can cause, especially for manual workers. The fact that this week has seen, even in the UK, health warnings made of a risk of death for workers without underlying vulnerabilities from the Met Office (among others).
Alongside that risk the experience has (rightly) called for revision of the UK health and safety protections for workers. As the TUC note, the UK has no predetermined legal bars on the maximum temperature a person should be required to work in, unlike the Labour Law in other jurisdictions. Instead, we have a system where after a worker has suffered an injury a worker could (possibly) obtain redress for a failure of an employer to maintain a ‘reasonable’ temperature. Alongside that ‘after the horse has bolted’ approach the UK adopts a ‘nudge theory’ adjacent approach reliant on non enforceable ‘recommendations’ by arms-length bodies (such as the HSE). Or, as it could be termed, ‘toothless edicts’. Perhaps recent experience will prompt a review to a more meaningful legislative climate, but that is probably extremely optimistic thinking.
This post addresses the situation for those not covered with a recognition agreement with a union (where there probably will be union safety reps appointed by the union); what rights will individuals have.
The experience of Covid catapulted the protections of section 44 of the Employment Rights Act 1996 into the public consciousness. Section 44 provides a person with protection against detriment if they 1) reasonably believe 2) there is a risk connected to work, 3) that is harmful of potentially harmful to health and safety, and 5) they have brought this to the employer’s attention in a reasonable way.
Until recently section 44 cases has focussed on entirely work specific risks (inadequate equipment, unsafe storage, etc) but there is no necessary requirement for the risk to be specifically related to a particular workplace. In the recent EAT case of Rodgers v Leeds Laser Cutting Ltd (2022) although the case was lost it was accepted that a general health emergency could satisfy the work related imminent danger requirement. It is possible that the risk to life posed by the current excessive heat could meet that same requirement. In 2003 a heatwave in Southern England, at lower levels than that we are currently experiencing resulted in 1,000 death.
However, any case would be much stronger if an employee has can demonstrate reasons why they are particularly vulnerability.
In this way there is likely to be specific arguments that any requirement or expectation to attend work in a heatwave will place some particular characteristics at a particular disadvantage that engages an employers non discrimination obligations or, in the case of relevant disabled persons, the right to make adjustments. It is likely, for example, some disabled persons, older and pregnant workers will be at a heightened risk of serious ill heat from a requirement to work in excessive heat. Faced with such risks then workers would be wise to ask for an employer to conduct an individual risk assessment and, in the case of public employers, disclosure of its public sector equality duty assessments of the impact of heat upon its diverse workers.
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