07 July 2017 #Employment
In December, law firms like to write advice on dealing with employment issues that may arise over the festive period, but the summer in its own way can create just as many pitfalls.
How hot is too hot?
In the event we do get another heat wave, what are an employer’s obligations to keep their workers cool?
Despite urban myths, there is no legally fixed maximum temperature for a workplace. The Workplace (Health, Safety and Welfare) Regulations 1992 only specify that an employer provides a “reasonable” temperature. To have a fixed maximum would cause problems for workplaces which are hot, due to their nature, such as foundries or even restaurant kitchens. Possibly more relevant in the cool British summer, are guidelines from the Health and Safety Executive for minimum temperatures. These are 16ºC for a workplace, but 13ºC if the work being undertaken is a rigorous physical activity.
To ensure temperatures stay “reasonable” employers should take steps to keep their staff comfortable when the temperature rises, cold water should be available, staff should be given breaks to go outside, fans or air cooling cabinets should also be provided if necessary. An employer should carry out a risk assessment for high temperatures, especially if staff do physical work, wear uniforms or if vulnerable workers are present. Employers also risk facing pressure from the Unions, with the TUC calling for a relaxation of dress codes during the heat wave last month.
Taking steps to ensure the office stays cool, will not only ensure you are legally compliant, but should ensure the heat doesn’t affect productivity.
The heat can also make normal workplace attire less comfortable, which can lead to questions of what is suitable to wear. This was taken to the extreme recently with a man in Buckinghamshire attending work in a dress after his employer told him that the shorts he originally attended in, were in breach of their dress code.
The employer relented on the shorts, possibly due to the potential threat of action for indirect sex discrimination, if their policy led to more restrictive rules around male dress codes as opposed to female dress codes. Such a policy can be justified, if an employer can show it is a proportionate means of achieving a legitimate aim, for example health and safety, or even potentially if it is a customer facing role, where appropriate attire is required to present a professional image. However, in cases such as the above where the employee worked in a call centre, the restriction may be harder to justify.
Employers therefore should take time to draft a dress code policy, giving full consideration to what would be appropriate, specifically for their workplace. They should also ensure the code isn’t discriminatory on grounds of religion, disability, sex or any other protected characteristic. It may be an idea to hold consultation with staff over the policy.
As a starting point Clarkslegal offer an Appearance and Attire Policy on Employmentbuddy.
“Where are we all going on our summer holidays?”
Schools out and the sun is shining. Understandably, this creates a spike in holiday requests and a hard task for managers, juggling this with business needs.
While the Working Time Regulations give employees many rights concerning holidays, they do not give an employee the automatic right to take holidays whenever they like, and employers can refuse such requests.
Indeed, employers can actually specify when holidays should be taken. This is common around Christmas, with many large factories often imposing a 2-week shutdown (using it to carry out maintenance). However, before doing this, employers must remember to give notice of at least double the length of the holiday.
Although the dates of public holidays are specified by law, unless it is in their contract, employees do not actually have a right to take these days off.
However, the decisions on granting and refusing holidays should be done in a fair and consistent way, such as based on who requested first. An inconsistent approach to this can lead to accusations of favouritism within the workforce.
If employers are looking to turn down holiday requests, ideally, they should have a good reason for this relating to their business need. Refusing requests can leave employers vulnerable to claims for indirect discrimination on various grounds, including that of sex and religion.
For example, it may be open for a female employee to argue that the prohibition to take holiday during a certain period places her at a disadvantage as a result of child care responsibilities.
Religious beliefs need to be taken into account if the employee needs the time off to attend events that are sacred to them, possibly abroad. However, this does not mean employers cannot impose any restrictions. In a recent case, a London Underground maintenance worker who took 5 weeks’ consecutive leave in Sicily each summer was found not to have attended the number of religious festivals he had claimed he needed such a long holiday for. If they had needed to, London Underground could have possibly justified the refusal due to business needs.
Again, an employer should spend time creating a policy for holidays. This can give managers set guidelines to work from and let employees know where they stand before submitting a holiday request. Under the Working Time Regulations, a worker must give notice equal to twice the length of the holiday they wish to take. If the employer then needs to refuse the request, the counter notice should be given at a date equivalent to the length of the holiday.
The holiday policy can also address common issues such as employees taking time off when holidays have been refused, or late returns from holiday, making it clear that disciplinary action may be an option.
For further advice on temperatures at work, dress codes, holiday requests and writing policies please don’t hesitate to contact the employment team.