The risk of blackouts: is it business as usual?

With the impending risk of power cuts this winter, employers may find themselves faced with the question as to whether their employees are legally required to work during a blackout. Our employment law partner David Jepps outlines the legal issues and considers how employers could respond to their employees working in such conditions.

Can employees work during a blackout?

As there are no specific rules, it depends on the role. If a role is unaffected by a power cut (for example, that of a lorry driver or a role where extra resilience is a prerequisite, such as that of an emergency service worker), the answer will be “yes”.

Other roles that require employees to be physically present in the workplace (for example, an office role) will present a range of variables for employers to consider.

Workplace conditions

 There is no minimum temperature as such for workplaces, but government guidance suggests 16 degrees for sedentary jobs or 13 degrees for physical work, and overriding legal duties will also apply. This means employers are obligated to provide a safe working environment. A workplace that is too cold to work in is a health and safety issue and could mean that some employers do have to close their workplaces. There is also the issue of ensuring the workplace has safe lighting. The starting point should always be that if an employer closes the workplace and an employee is available to work, then the employee should still be paid.

Employees working from home

 If only workplaces are targeted for power cuts, then some employees may be able to work from home, contractual arrangements permitting.

The same health and safety principles apply to working from home, but of course remote workplaces are harder to police. Employers should consider issuing policies anticipating power outages, always ensuring that health and safety is the number one priority. Employees shouldn’t be forced to work where there is a reasonable risk of danger and such scenarios could allow employees to make health and safety-related unfair dismissal claims without needing the usual two years’ employment.

If power cuts are brief, only in daylight hours or alternatively outside of normal working hours, then their impact may be minimal and employers might take a similar approach to when employees can’t work due to bad weather, adopting a liberal approach to lost time being temporary, no one’s fault and just “one of those things”.

Employers could also carefully explore pausing the working day if contractual arrangements with employees allow for some flexibility in when hours are worked. Employers should be minded that some employees may not be able to be as flexible as others due to childcare issues, and taking a rigid approach may introduce sex discrimination issues – as statistically more women than men have childcare responsibilities.

A proactive employer could utilise technology, depending on the industry, to allow work to continue. Switching to communications devices such as cell phones and laptops that have their own power supply where appropriate during blackouts and relying on mobile data rather than WiFi is a possible practical option. However, employers must ensure employees are aware of policies concerning GDPR if using their personal devices for work.

 If you have any questions on the impact of blackouts on employers, please contact David Jepps.