Summer issues: overview

Pia Sanchez of Lewis Silkin LLP begins a series of articles on summer issues with an overview that looks at how summer issues and hot weather can affect employers. By controlling workplace temperature and being flexible about dress codes and working hours, employers can go some way towards reducing the negative impact of hot weather on their business.

Introduction

Summer is upon us and the Met Office predicts in its summer forecast 2009 (on its website) that it will be a warm one, with temperatures at times exceeding 30°C. This article examines some of the issues that employers are likely to encounter during the hot summer months, and provides guidance on how to deal with them.

Workplace temperature

It is inevitable that the rising outdoor temperature will have an impact on workplace temperature, creating a hot, stuffy and uncomfortable environment for employees, particularly where no air conditioning facilities exist. Regulation 7 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires that the temperature in all workplaces inside buildings is reasonable, but no upper temperature limit is specified.

Regardless of the lack of specific legal restrictions on maximum workplace temperatures, it is likely that employees' effectiveness at work will be impaired if they are too warm. In the interests of maintaining productivity and good employee relations, it is in employers' interests to take steps to alleviate the problem. Measures that employers can take include ensuring that window blinds are working correctly, providing fans, giving regular breaks for cold drinks, and being flexible about dress codes and working hours.

There is guidance on thermal comfort at work on the Health and Safety Executive website, which offers advice to employers and employees on achieving thermal comfort in the workplace. It is recognised that thermal comfort is more than just a question of room temperature, and other environmental and personal factors may have an impact.

Employers should take complaints about workplace temperature seriously and investigate further. The extent of the problem may be indicated by the number of employees who have complained. Employers should monitor thermal conditions and carry out risk assessments as appropriate. Some employees may be more vulnerable than others to the effects of heat, and employers will need to take steps to alleviate the problem, possibly by changing working practices.

Whether or not disciplinary action may be taken against an employee who refuses to work due to the workplace temperature will depend on the circumstances. Employees are protected against dismissal and detrimental treatment where, in circumstances of danger that they reasonably believe to be serious and imminent, they take steps to protect themselves, or leave or propose to leave the workplace. Therefore an employer that takes action against an employee who refuses to work due to the workplace temperature may have to defend its actions in an employment tribunal. (See Employees subjected to detriment short of dismissal and Dismissed employees in the Employment implications section of the XpertHR employment law manual for more details.)

Dress codes

As mentioned above, employers may choose to be flexible about dress codes during periods of hot weather. However, hot weather sometimes leads to employees adopting an over-relaxed attitude to their employer's dress code, regardless of whether or not the employer has announced temporary changes to the requirements of the code. Employers that wish to impose a dress code, regardless of the workplace temperature, need to ensure that they do so in a fair and non-discriminatory way. It is sometimes perceived that dress codes are applied more rigorously to male employees than female employees, particularly during the summer months. Employers that allow female employees to attend work in sandals and sleeveless tops, but insist that male employees wear suits and ties, may be vulnerable to sex discrimination claims. Employers need to ensure that their dress code is fair, and applied and enforced equally across the workforce. Employers also need to be sensitive to health and disability considerations, for example allergies and other conditions that may be aggravated by heat and that may make it difficult for some employees to comply with the dress code during hot weather.

During periods of hot weather, employers should set clear guidelines from the outset clarifying what is expected of employees in relation to dress, and what is not acceptable. Employers should also consider whether or not the requirements of the dress code are reasonable and necessary. There may be genuine health and safety or hygiene reasons for imposing certain dress rules. Alternatively, the dress code may be intended to project a professional image to members of the public, or promote a certain industry image. Employers should consider whether or not the code can be relaxed during hot weather, for example, by allowing employees to wear cooler clothing, provided that they keep smart clothes at work to change into if necessary, in the event of an unexpected client or business meeting.

Whether or not it is reasonable for an employer to take disciplinary action against an employee who flouts the dress code during hot weather depends on the circumstances. The factors that will be considered include:

• whether the requirements of the code are reasonable and relevant or arbitrary and irrelevant to the post held by the employee;
• whether or not it is possible for the employer to relax the code's requirements without risk to its business; and
• the employee's reasons for not complying with the code.

Personal hygiene

Hot and stuffy workplace environments can give rise to, or exacerbate, personal hygiene problems, which are difficult and embarrassing to address for all concerned. Most employers require employees to present themselves at work in clean clothes and to comply with acceptable standards of personal hygiene. When personal hygiene standards fall, or become an issue due to warmer weather, employers should address the issue and raise it with the employee concerned without delay. An informal conversation with an employee is often enough to bring about a change in standards. The employer may also uncover reasons for the employee's personal hygiene problem. For example there may be domestic, financial or accommodation difficulties, or an illness or medical condition causing it. An informal meeting will make it much easier to determine whether or not anything can be done to help the employee, such as providing washing and changing facilities at work, or a loan or salary advance in cases of financial hardship.

Employees who do not have a good reason for failing to comply with acceptable personal hygiene standards, and who fail to improve once the matter has been drawn to their attention, may be advised that the issue will be dealt with under the disciplinary procedure.

Alcohol

Employees may be tempted during hot weather to go for a drink during their lunch break. While most employers do not begrudge their employees enjoying a pub lunch in the sunshine with the occasional alcoholic drink, where employees over indulge and return to work under the influence of alcohol their productivity is affected and health and safety may be compromised. Employees who breach the employer's rules on alcohol consumption should be dealt with under the employer's alcohol policy (see Alcohol and substance abuse policy and procedure in the XpertHR policies and documents section for a model policy and procedure).

Holiday requests

Hot weather can lead to an increase in last minute holiday requests by employees. Employers need to ensure that they treat requests for holiday fairly and do not discriminate unlawfully when granting requests. Normally, employees' requests for holiday are dealt with on a "first come, first served" basis and employers are not obliged to grant holiday, provided that employees are able to take their leave entitlement during the leave year.

In the absence of an arrangement or agreement to the contrary, the Working Time Regulations 1998 (SI 1998/1833) require workers to give notice of a request to take annual leave of at least twice the period of annual leave requested. The employer can then serve counter-notice refusing the leave request. The employer's counter-notice must be at least as long as the period of leave that the employee requested.

Absenteeism

Some employers may notice an increase in unauthorised absence during warm weather. Sometimes employees fail to return from holiday on time, or take the occasional clandestine day off to enjoy the sunshine or watch sporting events, citing sickness as the reason for the absence. An employer that notices a pattern of sporadic but frequent absenteeism should discuss the matter with the employee informally at first. Absence policies that require employees to attend a return to work meeting (regardless of the length of absence) often discourage sporadic absences. A return to work meeting is also a useful means of identifying underlying reasons for absenteeism (for example poor motivation, stress or bullying). (See Short-term sickness absence: overview for more guidance on dealing with absence problems.)

Where it suspects that an employee's absence is not due to genuine illness, the employer should carry out an investigation and follow its disciplinary procedure, which must comply with the principles in the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website), before taking disciplinary action. The employer must have sufficient reasons to justify disciplinary action.

Where an employee's absence is genuinely due to travel problems, or other unforeseen circumstances preventing his or her return to work after a holiday, and the employee has not attempted to deceive the employer by claiming that the absence is due to sickness, the employer may exercise a degree of discretion as to whether or not the absence should be treated as holiday, or granted as additional paid or unpaid leave. Disciplinary action against employees who have a genuine reason for being unable to return to work from holiday on time, is likely to be unreasonable. Employers should be consistent in how they treat employees in these circumstances.

Where an employee fails to return from holiday in the longer term, the employer should investigate the absence. Sometimes employees fail to return due to family commitments. Other absences may be due to employees opting to take a longer holiday than that originally requested. Employers should adopt a policy that specifies how they will deal with unauthorised absence, and make clear that only leave that has been booked may be taken. Unauthorised holiday extensions should normally be addressed through the disciplinary procedure, unless the absence qualifies under any of the statutory time off provisions (for example because it is to care for a dependant) or the compassionate leave policy. If the absence is due to illness the employer should apply the usual sickness absence procedure.

Flexible working

One way to reduce sporadic absenteeism and improve morale during the hot months may be to introduce temporary flexible working arrangements. Many employers already operate flexible working arrangements, for example by allowing employees to work longer hours on some days so that they can finish work early one day a week or take a day off in lieu, or by having flexible working hours so that employees can start and leave work early every day. The success of a flexible working arrangement depends on it being carefully crafted around the needs of the business. The rules relating to flexible working should be communicated in a policy so that employees understand what is acceptable and the rules are not abused or misunderstood. Employers should consider: whether or not employees will be required to work any core hours; how working hours will be monitored; which employees will be eligible to work flexibly; and the duration of the flexible working arrangement.

Next week's topic of the week article will be a case study on summer issues and will be published on 15 June.

Pia Sanchez (pia.sanchez@lewissilkin.com) is an associate in the Employment and Incentives Department at Lewis Silkin LLP.

Further information on Lewis Silkin LLP can be accessed at www.lewissilkin.com.