Be prepared for the climate changing - Malcolm Gunnyeon

Scotland was at the centre of climate change discussions last year when the high-profile COP26 summit was held in Glasgow. In the months since, the consequences of climate change in Scotland have become clearer.

Storm Arwen caused devastation in parts of Scotland, with thousands left without power

We have endured some of the worst storms in years, from Arwen to Dudley, but are now experiencing a very dry spring with early warnings of water shortages being issued. Severe, atypical and often unpredictable weather is becoming more common. We must recognise that we can no longer expect "typical Scottish weather".

The extreme nature of the threat of climate change is a disruptive force that requires us to innovate at pace. This presents a range of challenges for businesses, including when protecting the health and safety of their staff and the public.

We can see all around us that our national infrastructure is facing extreme weather that could not have been predicted when it was designed many years ago. Investment in more resilient infrastructure, or in innovative measures to protect existing infrastructure, is an outlay which businesses cannot avoid if they want to remain compliant with their health and safety duties. Changes in the weather have created new considerations for the likes of power companies and other firms on the front line who have to send out employees to do essential jobs during and after extreme weather incidents.

Malcolm Gunnyeon is a Partner, Dentons

Employers therefore need to be aware of their legal duties when it comes to health and safety. Any responsible employer must balance the requirement to ensure continued delivery of essential public services, such as those that provide light and heat to homes, with ensuring the safety of staff and customers.

Take the relatively recent Storm Arwen that had devastating effects in parts of Scotland towards the end of 2021. There was considerable and understandable pressure on electricity network providers to maintain power by quickly fixing an unprecedented number of faults. That is a health and safety issue because you cannot have people without power for long periods of time. However, these companies also have a legal duty to protect their staff from the risk of injury. This raises the question of when it becomes too dangerous to send employees out to try to restore power if there is a threat of them getting stuck in deep snow, for example.

Another worrying aspect of climate change is the increased unpredictability of weather all year round, such as summer storms, making it hard for businesses to plan ahead.

While trying to prepare for the impact of climate change may seem like a major task, my advice is to approach it like any other aspect of health and safety management. You need to carry out comprehensive risk assessments that take climate change and the increasing unpredictability of weather into account and develop your knowledge around the relevant issues and the technology that allows you to be as prepared as possible.

You should review risk assessments and procedures to reflect environmental changes. Organisations should also actively promote a culture where employees can speak out if they feel their safety is being compromised. We have seen this approach championed in the energy sector over the last 30 years and others can learn from that.

That culture should include everyone, from new recruits to the chief executive, making it clear that nothing is more important than employee safety and wellbeing. Companies should ensure their health and safety systems and processes are regularly updated and are being followed on a daily basis – and beware of complacency.

More generally in the area of climate change, many businesses should be aware of the threat of legal challenges from activist groups. This is, of course, particularly true for businesses involved with fossil fuels. Such businesses must be alert to the threat of legal challenges. While challenges to date, which have mainly been brought by judicial review, have mostly failed, they show no signs of slowing. This may be because litigation success is not the only objective when activist groups start judicial review proceedings. Delay, disruption, increased costs and public debate usually follow, even where the challenge is unsuccessful.

With climate change, and the public and political focus on it, set to intensify, organisations must be prepared for it to impact almost every aspect of business - from health and safety to the threat of litigation from activists

Malcolm Gunnyeon is a Partner, Dentons