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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47417
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I have worked at my current employment for 30 years in April

Customer Question

I have worked at my current employment for 30 years in April of next year and they have recently had air conditioning fitted in my office area. This has caused me to have a cough and although I have visited my doctor on 3 occasions and also visited the company doctor for a 2nd opinion, my company are still advising that it is 'not feasible' for me to be moved to a non air conditioned office on a permanent basis. I have returned to work this week after having a month off and have been put in an office but told this is only for a temporary measure
Submitted: 9 months ago.
Category: Law
Expert:  Ben Jones replied 9 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 9 months ago.

Is it actually possible to move you in an area with no air conditioning?

Customer: replied 9 months ago.
I have been moved temporarily (this week) as per the company doctor's recommendation but they are saying that this is not a permanent solution and the offices that are not air conditioned will be knocked down in the future
Expert:  Ben Jones replied 9 months ago.

So assuming this does happen, is there anything that they can do in the current office environment to help you?

Customer: replied 9 months ago.
The office I work is an open plan office where the vents are fitted. They have made it clear that the air conditioning will not change and will be used all year round. If they are unable to provide a non conditioned environment for me to work in because it is not available then could I suggest I work from home although I am not sure they will agree to this either
Customer: replied 9 months ago.
I understand that it is their legal responsibility as an employer to provide a safe working environment that does not affect my health and this is something I am having difficulty getting them to do. They only seem agreeable to moving me temporarily for a one week period. How can I put more pressure on them to provide a more permanent solution
Expert:  Ben Jones replied 9 months ago.

A good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the risk factors. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

The issue is how far is an employer expected to go to achieve this. Humans may have various different sensitives or issues which may be affected by a wide range of variables in the working environment and it may be impossible to ensure that everyone is not affected in any way. There will be obvious risk factors but air conditioning is unlikely to be one of them as millions of workers work in such environments without any issues. So this is clearly a more individual problem than a clear health and safety risk that can affect the workforce in general.

That does not mean the employer cannot be expected to do anything about it and of course there will be a duty on them to try and deal with it as best as possible. They cannot be expected to withdraw the air conditioning in general so it is about what is available and feasible. This could be placing you in an office which does not have AC, allowing you to work from home, etc. However, if there are no offices that have no AC and it is not practical to create one then they cannot be expected to do this. Similarly, whilst working from home can be an option it would depend on how practical that is and if your work will be affected by it.

Your rights will also depend on whether you are classified as disabled under law (it does not have to be a physical impairment for this to apply) and in that case the employer will have a strict duty to make reasonable adjustments.

Please take a second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars. I can continue answering follow up questions and in particular can also discuss the law on disability and how it can apply to you here. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can still continue this discussion. Thank you

Customer: replied 9 months ago.
Thank you for your detailed reply. As non air conditioned offices are available currently but they are saying these will not be available in the future as they wish to have these knocked down to make way for other facilities or bigger offices, am I not in a position legally to get them to keep one office available for me to work from. I am a sales administrator and because I have a hearing problem and registered disabled, I am unable to use the telephone and therefore use the e-mail. Because of this I do not see why it is 'not feasible' for me to moved permanently unless of course I'm missing something. Nether do I see a problem with me working from home if an office is not available. I understand that my assistance is required from other employees and that sometimes I need to be here physically myself to undertake certain tasks
Customer: replied 9 months ago.
My concern is that the company will say they are not able to accommodate me and as such they can no longer employ me as I am unable to work effectively in the environment (which they have created by fitting air con)
Expert:  Ben Jones replied 9 months ago.

Whether you can get them to keep an office really depends on a number of factors - how big they are, how practical it would be to keep one of them, etc. So if it is just a room that they can keep separate from the AC part of the office it may not be that unreasonable. However, if it is another big open plan space they cannot really be expected to keep all of it open just for you. So it will always depend on the individual circumstances as each case will be different based on its facts and what is available, feasible, practical, etc

Customer: replied 9 months ago.
The office I am currently working in is a small office that is currently not in use. They have been using this office as a meeting room as and when required. They were looking to take this office down and use the space as a training facility but this has been something that they have been talking about for approx. 2 years now but has not yet happened. There is also 1 small office upstairs which again is currently empty and is being used for a meeting room when required. I have not been made aware that this office was to be taken down to make way for something else but I am now being told that this is the case. It appears to me that they are trying to make things awkward for me as offices are currently available but they a reluctant to let me work in them for more than a few days at a time.
Expert:  Ben Jones replied 9 months ago.

I would agree that they should be more accommodating when they have empty office spaces and if they are not used then they can allow you to work there for longer. I am thinking that if you can shoe your condition which is affected by the AC amounts to a disability your rights will be much stronger if you go down the disability discrimination route, which I can discuss with you in more detail if needed.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

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Expert:  Ben Jones replied 9 months ago.

Thank you. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

So you can rely on these stricter requirements under disability laws to try and push through a more permanent and adequate change to your working environment.

Customer: replied 9 months ago.
Although I suffer a hearing loss, I do have a cochlear implant fitted and of course this does affect certain things I do e.g. I cannot talk on the telephone. However my company have always been understanding regarding this issue and as most of my job can be done via e-mail this has not caused any issues where my work condition is concerned. The only issue is the problem I am now experiencing since the A/C being fitted although I am not sure how this would relate to my disability. It is obvious that I having some kind of issue with the system that has been fitted here although I do not suffer any problems when visiting other premises with A/C so the problem does seem to be something limited to this system
Expert:  Ben Jones replied 9 months ago.

ok if this is not linked to a condition that would amount to disability then your rights go back to the general health and safety obligations as described initially

Customer: replied 9 months ago.
OK, I will contact the HSE to find out what the next step is and see where I go from there. Thanks for your help
Expert:  Ben Jones replied 9 months ago.

You are welcome, all the best