In its Winter Outlook Report, the UK National Grid Electricity System Operator has warned that in the ‘unlikely event’ that insufficient gas supply coincides with reduced electricity imports from continental Europe, it could be forced to implement planned, temporary blackouts to manage demand.
In accordance with the Electricity Supply Emergency Code (ESE Code), these are expected to take the form of rolling, three-hour ‘disconnections’, in which consumers in particular localities would be given a day’s notice that they would lose power. However, the length and frequency of any blackouts and the amount of notice that will be given to consumers ultimately remains unpredictable.
Under the ESE Code, businesses can apply in advance to their regional network operators to be designated as ‘Protected Sites’, which will continue to receive power supply during planned blackouts. In order to qualify as a Protected Site, a particular site must be used for the provision of an ‘approved designated service’ (such as critical transport or telecommunications infrastructure) and must satisfy certain conditions about its grid connectivity. Most employers will not be able to meet these tests and so will remain affected by planned blackouts.
For the first time since the ‘Three Day Week’ in the 1970s, UK businesses may find themselves unable to keep the lights on and key systems running at times this winter. This is unlikely to be as extreme as in the 1970s, when for two months all commercial use of electricity was limited to three days each week. But even short blackouts can cause significant disruption to businesses.
Faced by the looming prospect of power blackouts, employers should give careful thought to contingency planning, identifying any steps that can be taken to minimise disruption.
The practical impact on employers will vary widely depending on their sector and activities, as well as the frequency, duration and notice of any rolling outages. We expect that ensuring the resilience of IT servers and systems will be a priority for many companies. Manufacturers will face challenges such as keeping production lines and refrigeration systems running, while retail and hospitality may not be able to provide their usual services or even remain open at all.
The widespread move to remote and hybrid working may create additional challenges for employers. Workforces which increasingly rely on electronic communication and collaboration may struggle to work effectively – or at all – during outages. Although, as the plan is for rolling blackouts in different regions, it is possible that only some rather than all homeworking employees will be affected at the same time.
Some practical steps that employers can take to minimise the impact are:
Rolling blackouts are likely to result in temporary periods where employees are simply unable to work, for example because their premises are closed or production lines are shut down. This may be because the employer cannot operate at all without electricity, or because it is unsafe to do so.
As we all learned during the height of the COVID-19 pandemic, employers cannot just send most employees home without pay if a workplace is forced to close. This is not true for all staff: casual workers, for example, are generally only entitled to be paid for the hours they actually work. However, in the event of an emergency temporary closure, most employees would be entitled to their normal pay unless you take steps to renegotiate this position.
The exception to this is the use of lay-offs or short-time working during affected periods. A lay-off is where an employer provides employees with no work or pay for a week or more, while short-time working occurs when an employee works only part of a week and receives proportionately reduced pay. With temporary blackouts of a few hours, short-time working is more likely to be relevant. However, employers will only be able to use unpaid short-time working lawfully where employment contracts give them a unilateral power to reduce working hours and pay, or with employees’ agreement. In workforces with a recognised trade union, short-time working is also likely to require notice to be given to the union.
Some employers may have introduced lay-off and short-time working into employment contracts following the experience of the COVID-19 pandemic. Most contracts, however, will not cover this possibility (although it is slightly more common in some unionised industries). Imposing short-time working without contractual authority risks employees bringing claims for unlawful deductions from wages or resigning and claiming constructive dismissal.
A possible alternative is to ask employees to take annual leave for part or all of the affected days. However, the limited advance notice of outages means this is unlikely to be a practical option. It would also rely on employee agreement, as the employer is unlikely to be able to give the notice specified by the working time rules to require an employee to take holiday on a particular day (twice the length of the leave the employee is being asked to take).
Employers should make sure that they consider any health and safety risks for their workforce (including those working from home) as part of their contingency planning for potential blackouts. Employers have a duty to safeguard their employees’ health, safety and welfare at work, as far as is reasonably practicable, including providing a safe working environment and systems of work.
Temporary losses of power may create additional and unusual health and safety risks, whether due to the loss of light, heating and/or cooling, failure of communications or sudden stoppages of equipment or machinery. Some employers may wish to use emergency generators, and staff will need to be trained on how to use these safely. If an employer intends to continue operating its workplace during blackouts, it is strongly advisable to carry out a detailed risk assessment which looks at how this will work in practice.
Employees are likely to be anxious about the blackouts and what it may mean for their work, as well as their homes. On top of all the other issues facing us at the moment, including the cost-of-living crisis, this will have a further impact on employee wellbeing.
It is advisable to keep the workforce informed about your plans. It may well be that practical solutions can be found to many of the issues through discussion and consultation. Employees are also likely to feel reassured by an employer that plans ahead and communicates those plans clearly.
We all hope that Britain’s power supply remains resilient this winter. But if blackouts are needed, some preparation and planning now can help to lessen the impact on both the business and the workforce.
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