Firms must be ready to deal with potential blackouts: Jayne Flint

The uncertainty around this and ongoing potential for blackouts this winter are forcing many organisations to consider reduced opening or manufacturing times.

It is vital to ensure that your business has a plan in place to manage the consequences of blackouts on your operations.

The impact of blackouts will vary according to the size of the organisation, the nature of the work it does and the hours of work or shift patterns it operates. Employers that already operate flexibly and have embraced remote and hybrid working will, arguably, be much better placed to cope with any blackouts and less likely to see a significant drop in productivity levels.

This does not mean that such organisations should be complacent. It would be prudent to implement a communication plan and discuss with employees what this means in terms of their agreed working hours, whether those hours can be met through the blackouts (by, for example, varying the times of the day or week that employees work) and, if not, whether the time can be made up later or taken as holiday etc.

For many employers, the reality of managing blackouts and the negative impact this will have on productivity will be much more serious.

Organisations in the manufacturing, hospitality and retail sectors often engage staff on a fixed number of contractual hours each week. If a decision is made to close or reduce the business during blackouts, this will, in all likelihood reduce the number of staff required that week. This may lead to discussions about a temporary reduction in hours of work, which will be a real challenge for employees who are also feeling the squeeze on their finances.

Employers need to ensure they navigate these conversations very carefully, as this will give rise to a number of legal risks. Considerations for employers include whether a temporary reduction in work will trigger the need for collective consultation under section 188 of the Trade Union and Labour Relations Consolidation Act 1992. Failure to get this right can lead to the automatic payment of a protective award at the employment tribunal of up to 90 days' pay per employee.

It is also important to consider the wider implications on employee and industrial relations. Unions may object to the measures in an attempt to leverage better overall packages for their members, and businesses in this scenario need to be prepared for some tough conversations.

Preparing a well thought out plan and communicating openly with staff as early as possible will be key to both ensuring the legal risks are well managed and endeavouring to get staff on board with the need for the measures in advance of them being implemented.

Jayne Flint is an associate in the employment team at law firm Womble Bond Dickinson