Christine Quinn from Legal Island and Seamus McGranaghan, Director, O'Reilly Stewart solicitors discuss:

1. Extreme Political Views - How Do I Handle It? Seamus deals with an awkward issue – “It has been brought to my attention by a concerned employee that we have a member of staff who has extreme political views. The individual regularly expresses and discusses his views around antisemitism, white supremacy, racism and homophobia with his peers and is understandably making them uncomfortable. How do I handle it?”

2.Fire & Re-hire – the decision is in on USDAW v Tesco plc. What does this mean for fire and re-hire policies going forward?

3. Too Hot to Work - Workplace Temperatures. With temperatures in the UK reaching record highs this month, do you know the law around workplace temperatures?

The Recording

Transcript below

Christine: Good morning, everyone. You're very welcome to "Employment Law at 11", sponsored by MCS Group. MCS help people find careers that match their skill sets perfectly as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to their website, www.mcsgroup.jobs.

So my name is Christine Quinn. I am part of the Knowledge Team here at Legal-Island. And I'm joined, as usual, by Seamus McGranaghan, Director at O'Reilly Stewart Solicitors, an employment law specialist.

So you're very welcome. This morning, we are going to be talking about a couple of different topics. We are going to be talking about kind of controversial topics in the workplace. We're also going to be taking a look at the latest in the Tesco v Usdaw saga on fire and rehire. And we're also going to be looking at when it's too hot to work. Not having that problem today, unfortunately, but we have been having those problems throughout the month of July. So I think it's a useful one to look at.

So first things first, if we could have a look at some polls just to get you guys involved. Katie is working away in the background to get the first poll up there.

Poll Results

Does your organisation encourage challenging conversations in the workplace? So there are three options there. We've got yes, no, and no policy at all. It's not something you've been thinking about really.

So if we could have a wee look at that, and let's see how we're getting on. Yeah, one is coming out further on top, I would say. Let's have a wee look at the results there. "Yes" is quite a high percentage there at 36%. We've got "no" at 19%, and then 45% are saying, "No policy".

Seamus, is that you were expecting? It feels like a big issue for employment lawyers, but maybe it's not translating quite over into HR and the workplace just yet.

Seamus: Yeah. I mean, I think two sides to that in relation to challenging conversations. There will always be challenging conversations to have between management and staff. I suppose we're thinking more in relation to those difficulties that will arise where employees have particular views and opinions on matters, and that those can be challenging at times, and that they're a challenge maybe amongst staff as well.

But either way, I think it's an important aspect that there is a clear policy and procedure in place in relation to those discussions in and around. And proper training provided as well is the other aspect of it.

But look, it's always a tricky one, and I think that certainly from the positive side of it there, there is an encouragement for those challenging conversations to take place. I think that is of assistance.

Christine: Yeah. We'll have a good look at that a little bit later.

So let's have a look at our next poll question then, please, Katie. Have you ever had to send people home from work because it was too hot to work? We've got yes or no there.

It'll maybe give us a bit of a view on what types of people are tuning in from what types of workplaces, because working in a warehouse in the heat is going to be very different from working in an office perhaps.

Yeah, the votes are definitely in on this one. We've got a resounding answer. So a big fat no, 95%. I'm not too surprised at that, in that Northern Ireland hasn't had the kind of 42-degree heat of London, I suppose. What do you reckon, Seamus?

Seamus: Yeah, I think that's right. I think that although we were feeling the heat, we weren't certainly getting it at any level that they were maybe over on the east side of England, and particularly around London.

But I suppose the issue, Christine, is we have been clearly warned that there is going to be this aspect of heat waves occurring more frequently in the future. And it may be a consideration that employers do need to look at that, specifically in and around making sure that employees are looked after in relation to their health and safety.

I do remember a number of years ago in our offices being in a hot spell for around two weeks, and us looking at different patterns of working and things like that for people. Maybe coming earlier in the morning, and maybe to try to decrease the numbers working on the floor at the time to try to keep the air moving and stuff like that as well.

But it can be a difficult one for employers, specifically us here whenever we're not used to those sort of extreme temperatures at all, to manage. But there is that health and safety aspect around it. And certainly, you could imagine if you were in London at 42 degrees heat, it may have been proven very difficult.

I suppose those other issues that would transfer over then for people that are working and remaining working from home, it is an extension of the workplace to an extent, and the ability to do that.

I was speaking to another solicitor in London who was working from his apartment in London in 42-degree heat with no air conditioning, and the curtains closed and a lamp on so he could see. It didn't sound pleasant at all. I think it was short-lived enough in the sense that it was a couple of days, but if we are being forecasted for this to be more frequent, it is something that we need to be to be careful of.

Christine: Brilliant. Thanks for that, Seamus. Our final poll question was actually suggested by a listener at the last webinar. And this is something we want to cover in our September "Employment Law at 11". So just wanted to get a feel for what you guys are thinking.

Has your organisation done anything to help with the cost of living crisis? It's a simple yes or no there. We'll go into more depth in the next webinar about what exactly it is other people are doing, what types of things you can consider, but let's just see where yours are at the minute.

Plenty coming in, and there is one coming out very much on top. So let's have a look at those results, Katie. So we've got 84% saying no.

Now, I think at the moment, we're all kind of watching and waiting, aren't we, Seamus? We've had the Bank of England raising the interest rates again just yesterday. We've got the oil companies announcing record profits and predicting more. So I think it's something that employers are going to have to take a serious look at in the autumn. What do you think?

Seamus: Yeah. I mean, I think that that's right. And even if we think back to our very prior webinar in relation to the strikes and the lengths that employees and their trade unions are willing to go in order to protect the position when it comes to the rising costs, I think that it is something that employers . . .

I think some employers are certainly feeling the pressure in that sense. I think employees are pushing. And maybe they're not unionised, or there's no recognised trade union, but certainly I'm aware from my clients that they have had approaches from employees saying, "What is the position on pay rises? We're struggling. We can see that the business is busy". They maybe know the orders that are coming in and going out and things like that, and they are asking those questions.

I know a number of my clients as well have been challenged in and around appraisal time of maybe the employees not being happy with the increase that they have been provided, or in circumstances where they haven't been given an increase.

So it is something that is definitely on the table at the minute. And I think we have come across circumstances. There have been lots of examples of reports in media, and specifically in Northern Ireland as well, of employers that have provided one-off payments or that have produced incentives for employees at an enhanced rate at the minute because of the difficulty. So we've heard of this where all employees are getting a bonus of £5,000 to help deal with the cost of living. And I think that that does put pressure on other employers as well.

We seem to be coming off the back of it now. I think things seem to have settled. But certainly this aspect where there has been a lot of movement of staff, a lot of resignations, a lot of people deciding on new careers . . .

And really, it has been the perfect storm coming out of the pandemic, coming out of this recruitment drive that's been happening, and shortages of staff within Northern Ireland. You think in and around hospitality. And then this aspect of the increased costs that are happening for employers in and around just the ability to run their business.

We've also had an end to that, the increase in our NIC contributions as well. So there's just been this perfect storm, and I think that we are all feeling the pinch.

And then the great news that we got yesterday that it's forecasted by the Bank of England that there is going be a recession. So it does leave us all a little bit anxious. But at the same time, employers can only do what they can afford to do when it comes to dealing with the cost of living allowance.

And just the point that you'd made there is it could soon be the position that nobody can afford to work from home because of the price of our gas and our heating, and we'll all be rushing back to the office so that we can turn our heating off during the day. That does sound funny to be saying, but it probably is a reality for a lot of people going forward.

Christine: Yeah. It would be, and it's something I'm looking forward to looking at next month. I think it's much needed because I think, "What are other employers doing?" I think people would be interested in that. So we'll do our best next month on that for you guys, so please do tune in.

Extreme Political Views - How Do I Handle It? 

So let's get to some awkward issues then, Seamus. I stumbled across this question on an HR forum. I think it may well have been on the CIPD actually. So the person asked, "It has been brought to my attention by a concerned employee that we have a member of staff who has extreme political views. The individual regularly expresses and discusses his views around anti-Semitism, white supremacy, racism, and homophobia with his peers, and he is understandably making them uncomfortable. How do I handle it?"

This struck me because we are seeing a lot of cases coming out in England around this idea of philosophical beliefs being tantamount to religious beliefs. Obviously, England has the Equality Act. We don't. But political opinions are covered in Northern Ireland under the Fair Employment Legislation, and it does have a knock-on effect.

So I think, during the pandemic, we were encouraging people . . . Well, people seemed to feel encouraged to bring their whole selves to work. "There's my dog. There are my kids". And then [inaudible 00:12:01] that we were all arguing about. There are a lot of weighty issues that seemed to just be, "Let's all talk about them". Is it really okay to be talking about that in the workplace is the question, Seamus?

Seamus: Well, I suppose that the instant answer is that as a . . . Can you bring your whole self to work? And the answer should really be "No, don't. Please don't".

And it is that aspect where we all have different values. We all have different opinions. If we look across the world in general . . . I mean, if you look at America, there are so many sort of very challenging issues that are happening over there, whether it's to do with gun control or women's rights and things like that as well.

And the issue is, Christine, I suppose that when those issues are talked about . . . Certainly they will be talked about in work. They may be debated in work. But the risk is it's that fine line of things being pushed to the point where someone takes offence or where they're feeling bullied and harassed if they have somebody that has very strong views, and maybe that person feels that those views are being pushed onto them whenever they don't want that.

And you can see the snowball effect happening whereby you could potentially have an employee that will raise a complaint with management. And then you're into the potential of dealing with grievances, investigations, potential disciplinary proceedings arising out of that, and even going down the line of dismissals.

I did interestingly read as well, and just for the point of why we're talking about it, that there sometimes can be almost this knee-jerk reaction from employers to dive straight in and get these issues dealt with. Take it out by the root if that's the issue that has arisen, and people being dismissed and terminations happening without a proper following of statutory procedures and things like that.

So, certainly, I wouldn't say that matters need . . . There shouldn't be a knee-jerk reaction. And I think that where those issues do arise, there should be proper investigation, as you would investigate any other matter. So proper investigation and not a knee-jerk reaction to just saying, "Well, this was said. That's not what our organisation is about. That's not our ethos. Let's make an example here and dismiss the person". I think that there's huge risk in that as well.

But there's no doubt that you're exactly right. Even the fact of working from home, on people's cameras, you can see the background of their home. You may see different values, religious emblems, flags, all those sorts of things that people have up at home, in their personal space, that might just cause offence to other people, or even just trigger other people in relation to being outspoken and raising issues.

So I think it is that aspect of boundary setting. And I think most of us and the majority of us are aware of what is good to talk about, issues to raise. And I think particularly in Northern Ireland, we're probably better at that than what we would see maybe in our counterparts, just given our backgrounds and histories and all of that.

But you can see those issues arising across the water in England, particularly around the Black Lives Matter movement. And think back to some of the issues that arose last year around football and racist comments being made, or perceived to being made online by employees that worked for certain organisations who then appeared on national media outlets being named and shamed. And then employers having to take steps in relation to dismissals, and thinking about some other substantial reasons and then damage to reputation.

So you can see the whole big snowball effect. And it's not just necessarily a matter where you're saying, "It's not about bringing yourself into work". It also impacts what you're putting out there outside of work on social media. A lot of the case law that we come across now does relate to people's opinions, values, comments, their beliefs that they place up on social media, and the risk then of an employer considering that there's damage to their own reputation.

So I think that the starting point has to be always that the employer needs to take a lead in this process.

I read somewhere that said, "If you have a team of more than five people in your workplace, you're going to, at some point, get some sort of conflict or some aspect of disagreement arising". That's all it takes, just five people. And it could be less than that. It could be two people. We've all had those cases of the two people in the office.

But the starting point, I think, has to be for the employer to be clear. And I think if you were to end up at an industrial tribunal, the question that the tribunal will ask will be, "Well, what is the policy and procedure? What is the training that is being provided? What does it say in the staff handbook? And how is that being communicated to employees?"

I know that, just looking at your popup behind you there in relation to Legal-Island's diversity and inclusion, it is all about those issues for employers. And I would expect that whenever you get to a tribunal case, those will be the issues that a tribunal will look at also to see what is the written policy that . . . What have employees been told? What have they been informed about? And there should be those policies in respect of how conversations take place, this idea of mutual respect amongst colleagues.

And the simplest things can trigger it. It can be a sporting game on TV the night before, or maybe an issue that has arisen in one of the soap operas that that's being talked about. It's any of those aspects that could just light the match where the boundaries are pushed. And I suppose it is that aspect of just having a policy and procedure in place that employees are aware.

I mean, nobody is saying you come to work and you're robotic, and you don't have discussions. We're all human at the end of the day. But it's being aware of what the boundaries are and, I suppose, steering away and staying away from those confrontational aspects that are likely to offend or cause an employee to feel that they're being harassed or bullied within the workplace, because that's when it will lead to sort of formal procedures and difficulties arising at that point.

Christine: Yeah. The Forstater case, which is the philosophical beliefs case over in England, it recently had a ruling saying that a woman who put on Twitter that you could not change your biological sex . . . She was dismissed by her employer for having that view. It has been upheld that she has the right to have that view. She does not have the right to discriminate against transgender people, but she has the right to hold that view and express it.

So I think they can feel like such big, weighty issues in these cases that employers are scared to deal with them. But I think what came out of that case is follow your procedures and don't have a knee-jerk reaction.

That employer immediately thought, "Oh my goodness, the optics on this are awful. People are going to think X, Y, and Z about us as an organisation". But if they took a step back, they could see that it wasn't actually in the course of her employment. It wasn't actually to do with a particular employee. And if they'd gone through their normal disciplinary procedures, they would've maybe had a different outcome in that case.

So I think the issues are scary and there's stuff that we don't all want to be talking about because it makes us all feel a bit uncomfortable because everyone has a very different moral standpoint on things. But when it comes down to it, it is just about having the procedure and following it and not going, "You're sacked because you think differently from me".

Seamus: Yeah, exactly. And I think that Forstater case, when you read actually what it was that the claimant tweeted in response to what was originally tweeted, you could look at it from one perspective and go . . .

This was a lady that had a visiting fellowship in the Centre for Global Development. She had applied for a full-time role. And her fellowship wasn't renewed and she wasn't provided with the job.

And essentially we have this tribunal. They have an EAT then that it's appealed to, and then they revert it back to the tribunal. So it is just a tribunal decision. But I suppose what it is saying is that it's not the belief or her own belief of what it is, that she's entitled to hold that belief, but it's the way and the manner in which she could put it forward.

And I think at the time, the respondent had said that she had specifically used language that was exclusionary and inflammatory. And I think whenever that was considered and looked at, the tribunal said, "Well, it wasn't, and there you have it", in relation to the ability for the employer then to be told that they've actively discriminated against the employee.

So it's a really good case, I think, that shows the really fine line that there is. There is almost this panic that arises when something is drawn to an employer's attention, because everybody is so worried and concerned about the backlash that happens, whether that's with further social media postings or whether it's something that would attract media attention.

And absolutely, there is a point and a place for issues that are in breach to be dealt with and to be dealt with appropriately and properly. But there are other times that arise where the employer can, I think, jump too quickly and not get proper consideration to what has maybe been put out there.

And also, what's really important is you can't just say, "Well, that person said X and that's wrong". You have to look also at the person and what their cultural background is and where they're coming from in relation to . . . Ultimately, what is their belief? Is it a philosophical belief that they're entitled to hold, and one that the employer should not be impinging upon?

So there's a lot in the mix there in relation to how employers should deal with that. But again, I think it does come down to the fact that rather than this normal test of reasonableness that we talk about . . .

And what I was reading from one of the commentaries in it was that it said that employers must consider whether an employee's views are within the remit of what would be considered to be worthy of respect in a democratic society, even if that might be offensive to some.

Now, if I give that response to a client on the phone, I know what they would tell me. But in a tribunal case, that's the level that you're talking about.

And this case really, Forstater, is making it clear that it isn't necessarily a punishable offence or a disciplinary offence for somebody to have a contrary view. It's just about whether the manner in which they put that across crosses the line, and then you're into the potential of the damage to reputation.

And maybe some of these organisations that hold very high values about certain things that we all wouldn't necessarily agree with or be bothered to be agreed with . . . It's that word of "woke society" and all that kind of stuff. It just depends where you sit in relation to that.

But I do think that there has to be an element of taking it in the round as well as to what the wider impact of comments might be and things like that.

Christine: Yeah. And I think it comes down to what your workplace is like. Maybe in a warehouse, you wouldn't be having the kind of political debates. At Legal-Island, we're paid to have those political debates. So that's acceptable.

And also reputational damage. If you're Tesco or Sainsbury's or Microsoft or something, obviously, your reputational damage could be bigger than kind of Joe Blogs Manufacturing in Belfast.

So it's one of those ones you have to take a view on it, don't you? What's the culture in the workplace? Will it actually damage your reputation? Arguably, in Northern Ireland, it's such a small place. Everyone knows what you're up to and you could lose your reputation quite easily.

So I think it can be a tricky one. I don't think that it needs to be as scary as some of the case law that's coming out of England makes it feel like because there's very highfalutin language used.

Seamus, do you have some takeaways for us on this point before we move on?

Seamus: Yeah. I think just in general there is an obligation on employers to make their employees and their workers feel safe and comfortable in their workplace. That's where the boundary can be for some people, that they will say, "I feel harassed", or, "I don't want to come to work and have to listen to those sort of comments. I find those offensive", things like that.

So I think employers do need to be clear in their guidance and they need to be clear with management and employees around the acceptable level of conduct and discussion that can take place. And that should be in a handbook or within policies and procedures.

The other thing then is the training aspect of it. It's not good enough just to have it in writing. There has to be that aspect where there has been training provided. There are organisations like Legal-Island that can provide fantastic training in relation to diversity and inclusion and things like that as well.

Even when comments are not directed at an individual, and I think this is an important point, any individual can bring a claim for harassment if they feel those comments that they've heard are offensive, hostile, or intimidating. It's very broad. We know that the definition of harassment is broad. The employer must take those complaints seriously.

Certainly don't knee-jerk, but you still need to take them seriously and they should be investigated.

Then the other aspect of it, and we've covered this off before in prior webinars, is that aspect of if it does get to the point where there is disciplinary action, make sure that you're following the statutory procedure. And if you're coming down to maybe considering termination or reputational damage, you're maybe more looking at that some other substantial reason.

I think we have a few interesting cases that will come up shortly in relation to all of that as well. But if you are doing that, take advice in relation to it, because that is a thorny way to deal with things.

Christine: Brilliant. Thanks very much for that, Seamus. Very helpful.

Fire & Re-hire –  USDAW v Tesco plc.

So if we move on our Tesco v Usdaw, this has been a bit of an on-going saga. We've had decisions for and against, and it seems to be just take it in turn really who wins on this one. And it's set to continue. So can you remind us what's been going on with this case so far?

Seamus: Yeah. Well, this case is really in and around this aspect of fire and rehire. Fire and rehire is an accepted position that's contained in a number of policies and procedures and codes of conduct within Labour Relations Agency as well. There are some aspects of fire and rehire there.

But essentially, in 2007, we're going back a long time here, Tesco had offered some of their employees an incentive, which was called a retained pay. And what was happening at the time was that there was movement around alternative sites. This was an incentive that was provided.

And it was followed up as well by a collective agreement in 2010. So it wasn't just an agreement. It was a collective agreement in 2010 that said this entitlement to retained pay became incorporated into the individuals' contracts of employment.

And it's as much as up to 40% of some of the employees' salary. So it's a significant amount of money that they receive through this retained pay.

And the retained pay was a retention incentive, as I said, and it was to remain a permanent feature of the contract. And it was to be guaranteed for life. Those were the two points that were contained in writing.

But then Tesco wanted to bring about an end to retained pay and . . .

Christine: I wonder why.

Seamus:  I think the position and threat of the retention of staff had alleviated. They were paying a significant . . . As I said, it was up to almost 40% in some cases of the employees' pay.

And the basics were that the . . . What they said was that in the absence of the employees expressly agreeing to the exclusion of the retained pay clause from their contract, that they intended to terminate the contract and offer re-engagement on different terms. And whenever that happened, then Usdaw went to the High Court. In February 2022, they successfully applied to the High Court for an injunction preventing Tesco from doing that.

And what happened was the High Court granted the injunction for 42 employees in total. What it declared was that the effective contracts were subject to an implied term, which prevented Tesco from exercising its contractual right to terminate for the purposes of removing an employee's right to retained pay.

And the High Court found that, as the parties had agreed, the payment was permanent and guaranteed for life. Tesco wasn't entitled to serve notice on the contract when its sole purpose was simply to remove the benefit of the retained pay.

But the case went to the Court of Appeal, and the Court of Appeal has had a very different view in relation to that.

Now, it is a difficult one to get your head around, Christine. We talked about this briefly before we came on. And it is difficult because when you have words written into the contract like "guaranteed for life" and "permanent", as a lawyer, you'd be slightly concerned about what that might mean outside of that.

There is a case law around perpetuity and all that sort of stuff. But the Court of Appeal essentially said that it was unable to accept the phrases of "permanent" and "guaranteed for life", that it couldn't accept that that showed a mutual intention on behalf of both of the parties for the right of retained pay, and that that would continue for as long as the contract was in place.

Christine: I kind of see of it. I don't want to argue with the judge, but . . .

Seamus:  Yeah. What they said was essentially there was a lack of clarity as to what both parties meant by "permanent". And in light of the finding, then, the court also concluded that it could not imply a term into the contract to prevent the employer serving notice even if the circumstances were to simply remove the aspect of retained pay.

So, ultimately, the Court of Appeals removed the injunction preventing Tesco from dismissing the employees. Usdaw have made it very clear that they are intending the appeal to the Court of Appeal. I think Thompsons in England are the solicitors on record for the trade union. And they have expressed this concern around when the contract has been clear, how there can be any ambiguity about it.

So certainly an interesting one. But I think the issues are in and around the fact that we've had fire and rehire for a long time. It is always the point of last resort. And there is usually that very important point of consulting with an employee in relation to any amendment of the terms and conditions.

You would imagine that for any employee whose employer approaches them and says, "I'm going to take 40% of your salary away from you", that they're not going to agree to that and it is always going end up . . .

But usually you'll get something along the lines of what they take away, you'll get back in some shape or form. It'll be dressed up as something else. Maybe you'll not get the 40%, but there will be that aspect of it.

But the clear position, I think, that the Court of Appeal is saying they're protecting that aspect of fire and rehire. And I think that we'll need to see then what the Supreme Court's position is going to be.

Christine: Yeah. I mean, I can appreciate that there are circumstances where you do need to fire and rehire, but I am struggling to see how that is not clear. We lawyers love tinkering with language and playing about with it, and it's what gets us into bother a lot of the time. But that, to me, is very clear. And if you can't say that in a contract, then that's what it means. I think we're going down kind of a dangerous road. So I think it's certainly one to keep an eye on.

What can we take away from this latest decision, Seamus?

Seamus: The other aspect then, Christine, is back to this sort of theme of this morning about reputational damage. On face value, from what I have read and the opinions that I have come across, people do see this as a very unfair step of Tesco in relation to the fact that . . . It's almost viewed if we don't get our way, they'll just simply . . . "We'll just terminate them and hand you a new contract, and there's nothing that you can do about that". And it's that reputational damage.

Tesco is a significant employer in Northern Ireland. And the reputational damage of people going to work for them or that aspect, I think that that backlash and concerns are the reason . . . I think that's the issue.

But saying that, I think the points of fire and rehire are going to remain with us, but it does seem to me that this is a difficult one to get the head around certainly.

I think, just on a broader basis, it does demonstrate the perils sometimes of fire and rehire, particularly whenever you're just doing it in relation to the detriment of the employee. And that seems to be the underlying theme of this. It was pushed in court that the only reason that Tesco wanted to do this was simply to remove the aspect of retained pay and that was it.

Christine: We've actually got a . . .

Seamus:  It doesn't leave you looking too good.

Christine:  No. Exactly. You don't want to end up with the PR of P&O and stuff, which now has become the watchword for how not to go about making redundancies, etc.

We've got a question in on fire and rehire:

So what are the circumstances where fire and rehire are justified?

Seamus: Well, essentially, where you can look at it is where you have exhausted the position throughout consultation. And where there is a trade union involved, you should be making sure that you are fully, properly, openly, and transparently consulting in relation to any aspects.

And ultimately, as well, there is an aspect where the idea of firing has to be justifiable. So the employer has to be clear about the reasons that it needs to make and take those steps. And that should form part of the consultation process. That should be the opening part that's given to the employees of why those steps are necessary.

On the Tesco case, it just seems to be a cost-saving exercise. "We needed it for a bit. Now we don't need it. Now we want to remove it". But there are genuine circumstances where . . .

There's an Asda case. I can't remember precisely the name of the case, but there is an Asda case where they also sought to fire and rehire, and there were justifiable circumstances in relation to it.

And it can be where the circumstances were maybe that part of the contract is no longer possible, or just simply that it's no longer viable and there's a clear business case for it.

But I think from a presentational purpose or presentational stance, you should always come at it from a clear explanation as to why it's happening. And if you can, offer alternatives to the employees also.

Christine: Yeah, and I think if it is something you're considering, it is absolutely essential to get legal advice and absolutely essential to properly document every single stage. You're always thinking in the back of your mind, "What is a tribunal going to think about this?" So I wouldn't be doing it without good legal advice and someone holding your hand the whole way, because it is an absolute line of last resort really, isn't it?

Seamus: Yes. Absolutely.

Christine:  And it's not to be taken lightly. Yeah, thank you very much for that, Seamus.

Too Hot to Work - Workplace Temperatures

If we move on to our workplace temperatures, we do have a question in on it already. So we've got someone who's been asked to provide sunscreen for employees. I suppose that really goes down to where do you work? If you're in the office, probably not a great argument to be had, but if you're on a building site, possibly.

Seamus: Well, that's it. The basics around workplace temperatures, the applicable legislation is the Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993. And they deal with regulations for indoor temperatures and for working inside buildings.

In relation to outdoor working, there isn't coverage within those regulations for outdoor working. But obviously, employers need to be cautious and careful about employees that are working outdoors and in the same way that you would provide health and safety equipment in relation to carrying out your job.

I don't think that the provision of providing sun cream is an onerous task for an employer. And I would say possibly that it would fall down within the reasonable health and safety aspects, particularly in relation to somebody being exposed outside to sun, maybe damage to their skin or conditions that can arise. The dreaded prickly heat rash one that I recall having one year.

But certainly, if you're right and this is a part of your role in relation to outdoor working, whether there are protective hats that are provided in relation to taking sun off the top of the head, to sunscreen, it would be the same way of assisting those employees.

And ultimately, if someone took a nasty reaction to the sun or had some burns on their skin, or ended up with some sort of skin cancer, there's the potential liability that the employer could be liable for that. So, in short, I think that it would probably be deemed as a reasonable request.

And most reasonable people, as well, if they're working outdoors, will apply some cream before they leave the house. But I would say that that's probably a reasonable enough request if they're working outdoors in high temperatures for a lengthy period of time.

Christine: Are there actually any laws around workplace temperatures? I always hear people saying, "Oh, there's this law that if it hits 30, you have to be sent home", and stuff. And I don't know where people are getting this from. It's not a thing, is it?

Seamus: No, it's not. There's no legal standard test for a maximum working temperature where the temperature increases to a point you can no longer work there.

Now, saying that, employers do have to look after the health and safety of their employees, but there isn't the specific guidance that says that if it gets to a certain temperature, we can all go home. That's not in place.

Under the regulations, there's guidance, and the guidance does say that ideally temperatures in the workplace should normally be at 16 degrees, unless the work has a physicality to it. If there's a physical effort that's needed, then it's 13 degrees.

The regulations do provide that a thermometer should be available in the workplace for employees to check the temperature. So that is another aspect of it.

But essentially, the guidance, and I looked at our local government guidance on it, said that employers should try to ensure that the temperature is pleasant, not too hot or cold, and try to ensure that the atmosphere is dry rather than damp or humid.

And there's this idea of reasonable comfort. Now, again, Christine, everybody's reasonable comfort level is going to be different.

Christine:  Yeah. I would be freezing at 16 degrees, I must say. I would have three jumpers on.

Seamus: It will just depend. And it is that old issue of A and B having the fight over putting the air conditioning on and off in the office, or closing up the window. It's all of that kind of smaller issues that arise, and then they increase and grow and create real difficulties and problems.

But you do need to look out for things. If there's extreme heat and you're looking at employees, if they're uncomfortable, if there's dehydration, exhaustion, that can harm, obviously, productivity and it has an impact on absenteeism as well. 

There’s a couple of other things to watch out for as well, particularly if you have vulnerable employees or workers.  Another one is any pregnant women or anybody with health conditions; working in extreme heat is not suitable, and you might need to make reasonable adjustments in those circumstances.

But there’s a couple of things, guidance wise, that might be helpful.  Air conditions or those air conditioning units, we have … we’re a bad example.  I have air conditioning on my floor because I work on the top floor of the building, where the board room is.  But the other floors don’t.  They have a cool air system, which isn’t as effective, and we’ve had to bring in those units at times as well, when it has been warm.

But increasing the number of open windows, providing staff with fans, installing blinds on windows so they can cut off direct sunlight, put work stations away from direct sunlight.  Some of the other aspects are job rotation, cutting down on the number of people in the office, changing working hours temporarily.  A good one is always to relax your uniform policy and your formal dress policy.  Certainly I’ve been in courts and tribunals where ther’es been a request made to the judge if you can take your jacket off or for counsel to remove their wig and their gown because it’s been too warm, and those sort of requests, if they’re made, should be facilitated, just in relation to good staff morale.  And also then the option of working from home for people, if they are more comfortable at home.  Maybe they can wear less clothing at home and be cooler; that might be something that would work for them.

But it is about essentially looking after the health and safety of your staff.  But there isn’t a maximum temperature.  There’s isn’t a point where you can say,” There, we’ve hit 30 degrees on the thermometer; we’re all out!”  And there are those steps that employers can take.  A really good one is making sure there is cold drinking water, and I know a lot of employers will do things like they’ll arrange for the ice-cream van to come down.

Christine:  Nothing wrong with that.

Seamus: Or they’ll bring in lollipops and things like that as well, and I know employers that have said and have offered the aspect of “We’ll take a half day today,” or “It’s a warm week.  When we get to Friday, we’re going to close two hours early.”  Things like that that employees appreciate, and it keeps morale up.

Christine:  So what would be your takeaways on the temperatures point, Seamus?

Seamus: One of the main things is be aware and listen to staff.  If staff are saying that they’re finding it too warm, do try and find ways to cool the workplace, whether it’s in an office, whether it’s in a factory; whatever it is, do try and work around that, and if you’re into this aspect of extreme heat and heat waves and things like that, it might be maybe looking at rotas and facilitating working from home or allowing people to come in earlier in the day when it’s cooler.  Some people work with equipment that is very hot and creates a lot of heat, and probably in those circumstances, you probably are at the point of looking to bring in some form of air conditioning units and things like that.  But I think open communication with the staff, make them aware of the steps that are being taken in order to try to help them, and certainly the other aspect is just watch out for anybody with a medical condition or pregnant employees or where they’re vulnerable and make sure that they’re protected from a health and safety point of view.

Christine:  Brilliant.  Thanks very much, Seamus.  That has absolutely flown in today.  A good session, so thank you very much for that.  So, last thing to say is Seamus is again joining us at our flagship Annual Review Employment Law conference on the 16^th and 17^th of November.  You can also see a picture there of Mark McAllister.  He will be there as well.  So, please do join us if you can.  If you’ve never attended the Annual Review before, the conference is a one-stop shop for HR and employment law professionals.  We bring together the leading employment law solicitors and HR experts in Northern Ireland to provide you with a comprehensive update on the most important developments for HR in Northern Ireland.  Learning is reinforced with our digital note pack, containing over 500 pages of detailed notes, templates and precedents, which you can refer back to at any time.  Plus you’ll be able to catch up and rewatch all the sessions after the conference has ended with the recordings bundle.  So, look at “For More Information,” in the post webinar email or come along to www.legal-island.com/events for more information on that.  You can of course also find myself and Seamus on podcasts, so Spotify, Amazon Music and Apple Podcasts.  If you subscribe to us, you won’t miss any of the webinars, and you can listen to them as and when you want to, if you can’t make it live.  And then it just really remains to say that the next Employment Law at 11 will be in September, on the 2^nd of September, and there’s also, on the 31st of August, another free webinar with our sponsors, MCS; their lunch and learn.  So, they’re talking about “Applications versus CVs: Comparing apples to oranges?”  So please tune into that.  Thank you all very much for attending today.  Have a great weekend, and we will see you next month.  Thanks now.