· Comment

What to do when the lights are off, but the employees are in

The pressure on gas supplies has sparked fears that there may be a need for scheduled blackouts across the UK when energy usage peaks this winter.

John Pettigrew, the chief executive of the National Grid, warned businesses and households that the operator might need to impose rolling power cuts on “those deepest darkest evenings in January and February” in the event generators failed to secure enough gas from Europe to meet demand, particularly if the country suffers a period of cold weather.

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Pettigrew highlighted that this is a worst-case scenario, with various initiatives underway to avoid that outcome. Government ministers have also said they don’t expect power cuts to occur but that they are planning for all eventualities.

The considerable impact power cuts would have on individuals and businesses means that the possibility, however remote, will no doubt be featuring highly on organisations’ risk registers.

For HR leaders, the focus will be on their legal implications as employers, and what they should do to prepare.


Consider short-time working and the right to pay

Short-time working is a temporary reduction in hours or days worked, and a concept with which we’re likely to become more familiar over the winter.

It was at one stage common for employers to contractually retain the right to put staff on short-time working with a reduced or nil rate of pay.

Prior to the pandemic, short-time working clauses had become far less common place, with some businesses even removing them from template contracts. The general view was that they might send the wrong message to employees at a time when the economic outlook did not seem as challenging.


Consider statutory guarantee payments

Subject to eligibility criteria, employees who are on short-time working may qualify for a statutory guarantee payment of £31 per day for up to five workless days (a day being the 24-hour period from midnight to midnight) in a three-month period.

A workless day is a day during any part of which the employee would normally be required to work but has not because of an occurrence that affects the normal working of the business in relation to that type of work.

While power outages might seem like the textbook example of short-time working, the National Grid has indicated that any scheduled blackout would only be anticipated to last for three hours at a time, likely between 4pm and 7pm on weekdays. On that basis, employees are unlikely to qualify for statutory guarantee payments because of any cessation of work as a result of the outages.


Manage expectations and communicate

Whilst short-term working clauses contractually enable an employer to reduce hours without pay, some business’ may prefer to make changes to shift patterns on days when there are planned blackouts.

This, in theory, would allow staff to work and receive pay for contracted hours and, importantly, would go some way to ensuring business continuity.

The importance of communication and managing staff expectations cannot be understated. Clearly, businesses will want employee and/or union buy-in to any proposed changes and must always be cognisant of the views of the workforce.

Employers should be mindful of employees with caring or other responsibilities which mean that they cannot agree to a shift change. Those scenarios will need to be considered on their merits and on a case-by-case basis.

It is not clear at this stage how much notice the government would give of a blackout. Communications to staff should highlight that there may be a need for the business to flex at short notice and that co-operation and open communication from both sides is welcome.


Utilise flexible working

For office-based, remote, or hybrid staff, it’s likely to be easier to flex at short notice than, for example, some manufacturing workers. Communications to staff should confirm that in the event of a blackout, staff can work flexibly on relevant days.

Arrangements can be agreed with individual line managers, in line with flexible working practices that have been implemented over the past few years. Employers should also consider the potential knock-on impact on the workforce of childcare, school closures and disruption to transport systems. Flexibility is key.


Employee wellbeing

Any communications to staff should also be used to recognise the impact of the unsettling times we continue to live in. It’s a good time to consider new initiatives and highlight existing support available to staff, to support them not only with their mental and physical health but also financial and social wellbeing.

Although we all hope that blackouts this winter can be avoided, if there’s one thing we’ve learned from the past few years it’s to expect the unexpected.

All employers can do in this scenario is to prepare for the worst and hope for the best. So put plans in place for your organisation, and perhaps look out the candles and board games, just in case.


Victoria Nicholson is a senior solicitor at Burness Paull