IF YOU CAN'T STAND THE HEAT…
The problem
Your hotel kitchen assistant complains to you about the high temperature levels in the kitchen where she works. The temperature has risen recently because of the hot weather. What rights do kitchen workers have, and what should you do?
The Law
Every contract of employment implies a general duty for an employer to provide safe working conditions. Employers are also under the following statutory obligations:
- Under the Workplace (Health, Safety and Welfare) Regulations 1992, to ensure that during working hours the temperature inside work buildings is "reasonable" and to provide thermometers so that workers can check temperatures.
- Under the Health and Safety at Work Act 1974, to take all "reasonably practicable steps" to prevent harm to their staff.
- Under the Management of Health and Safety at Work Regulations 1999, to carry out a "risk assessment" evaluating the risks to workers of hazards, including temperature.
While there's no maximum limit on workplace temperatures, minimum acceptable workplace temperatures have been set between 13°C and 16°C depending on how strenuous the work undertaken is.
Expert advice
A health and safety complaint that isn't adequately addressed by an employer could amount to a breach by the employer of a legal obligation under the contract of employment.
If the worker were to be dismissed from her employment as a result of making this complaint, the dismissal would be automatically unfair; no limit would be placed on the amount of compensation that could be awarded in her favour (as there is for ordinary unfair dismissal cases), and she would also be eligible to claim unfair dismissal without having had 12 months' continuous service.
Every situation has to be judged on its merits. If, however, the temperature in the kitchen was extremely hot, employees may be justified in refusing to attend work until it was reduced. They could also resign and claim constructive unfair dismissal.
In practice, such a claim would be difficult to prove as they would have to demonstrate that, after they had formally raised the matter, their employer had persistently failed to take reasonable steps to reduce the temperature to an acceptable level.
Such a failure, if serious, could constitute a fundamental breach by the employer of the implied contractual duty to provide safe working conditions.
A failure would also potentially breach the implied duty of mutual trust and confidence, as well as increase the chance of an employee reporting the matter to the Health & Safety Executive (HSE), which could then conduct an investigation.
Employers therefore ought to take complaints about high temperatures seriously, and should consider what practical steps can be taken to control temperatures (see Check list).
An employer should avoid carrying out a dismissal if the reason for the dismissal is connected to a similar complaint.
If an employee were to suffer a personal injury as a result of an accident in the workplace contributed to in part by the high temperature in the kitchen, the employer might also be liable for damages for negligence.
Check list
Employers should take a complaint of this nature seriously. The HSE provides guidance on practical steps employers may take to control temperature:
- Provide air conditioning or fans.
- Shade windows with blinds.
- Site workstations away from direct sunlight.
- Provide additional facilities, such as cold water dispensers.
- Allow breaks, so workers can get cold drinks or cool down.
- Introduce more flexible hours to avoid the worst effects of working in high temperatures.
Beware!
- An employee who complains about a health and safety breach may gain special protection against being unfairly dismissed, with no limit to the amount of compensation that may be awarded and no required period of qualifying service before the employee can bring a complaint of unfair dismissal.
- Failure to comply with health and safety obligations may lead to an enforcement notice being served by the HSE. If this isn't complied with, sanctions can be applied, including fines and, in extreme cases, imprisonment of directors.
Contacts
Tarlo Lyons
Howard Hymanson
howard.hymanson@tarlolyons.com
020 7405 2000
Health & Safety Executive
08701 545500
www.hse.gov.uk
