Against a backdrop that could be described as a perfect storm of economic factors, the UK, along with much of the world, has been plunged into an energy crisis.

Many families across the country are wondering how they will heat and power their homes this winter, and we’re being asked to reduce our energy consumption to avoid the possibility of blackouts.

The National Grid has insisted that blackouts are “unlikely” and would be the “worst case scenario”, but the prime minister has refused to rule them out. The impact that any power outages might have – on individuals, families, and businesses – would be considerable, with some industries like manufacturing and production bound to be among the hardest hit.

One silver lining of the past few years is that readiness for the unexpected has never been better. By now, HR functions and businesses are old hands at springing into action to respond to a crisis. But what are the legal implications for employers and what can they do to prepare for blackouts? What should you do when the lights are off, but the employees are home?

That’s not an opener I ever imagined myself writing as a solicitor in the 21^st century, but here are our top tips for employers in the event of blackouts:

1. 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.

2. 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. On that basis, employees are unlikely to qualify for statutory guarantee payments because of any cessation of work as a result of the outages.

3. Manage expectations and communicate: Whilst short-term working clauses contractually enable an employer to reduce hours without pay, some business’ preference may well be 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.

4. 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.
5. 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. For more on that, check out the helpful guide from Emma Smith, our inclusion and wellbeing manager: Our top tips for employee mental health and wellbeing | Burness Paull

As old saying goes, expect the unexpected. And in the meantime, perhaps look out the candles and board games, just in case...

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