Emergency Planning

Emergencies are situations that demand immediate action and response. Natural disasters, conflicts and outbreaks of communicable diseases have huge potential to adversely affect businesses. For example, in the flooding which took place across Northern Ireland in August 2008 two bridges collapsed, a train derailed and 37 major roads were shut down, including part of the M1 motorway. Also in August 2008, the UK government announced that the biggest threat to the UK was the risk of a flu pandemic, which could kill 750,000 people.

There are a number of issues for an employer to consider when dealing with or making plans to deal with an emergency situation.

1. Health and Safety

Employers have a common law duty to provide a safe place and system of work for all employees. An employer who fails to give proper consideration to the potential risks faced by employees in an emergency situation might be in breach of this obligation if a foreseeable emergency arises and reasonable steps to ensure employees’ safety were not taken. Such a breach can give rise to a claim for damages by an employee, if the risk to the employee was reasonably foreseeable.

As well as the common law duty, employers have a statutory duty to ensure the health safety and welfare of both employees and non-employees under the Health & Safety at Work (Northern Ireland) Order 1978 and are obliged to carry out an assessment of the risks to health of employees and non employees affected by the businesses operations under the Management of Health and Safety at Work Regulations (Northern Ireland) 2000 (“the Regulations”).

The Regulations specifically require employers to have in place a clear emergency procedures policy, to be followed in the event of “serious and imminent danger to persons at work”. A sufficient number of competent persons should be nominated to implement these procedures in relation to the evacuation of the premises and any necessary contracts with external services should be arranged, particularly as regards first aid, emergency medical care and rescue work. Relevant information about the emergency process should be communicated to all employees and training and refresher training in relation to the procedures provided periodically.

Employees can now claim damages from their employer if they suffer illness or injury as a result of a breach of the specific duties contained in the Regulations.

2. Employee absenteeism

An emergency situation could lead to a high level of employee absenteeism, both short term and long term. For example, the UK Government has said that in the event of a flu pandemic, it is likely that 50 % of the workforce will require time off work and that during a pandemic’s peak, which is likely to last two to three weeks, 15 to 20 per cent of the workforce are likely to be absent. As well as employees being ill themselves, they may need to take time off to care for dependents.

Employers should therefore plan how it will survive high levels of employee absenteeism during or in the aftermath of an emergency situation. The UK Government recommends that organisations employing large numbers of people should ensure that plans are capable of handling staff absence rates of up to 15% over a two to three week period, plus the usual absenteeism levels.

3. Home working and flexible working

Depending on the type of work employees carry out, they may be able to work effectively from home on a short term basis in the event of an emergency preventing them coming to work, where remote access via broadband or satellite connections are available.

If this option is utilised, employer should ensure that even though the employee works from home, the employer’s obligations under Health and Safety legislation, the Working Time Regulations and Data Protection Act are complied with. Employers also need to ensure that business confidentiality is maintained.

4. Changing terms and conditions

Employees may be required to change their working patterns or practices in response to an emergency situation. An employer may need to redeploy or retrain employees or ask them to take on additional roles and responsibilities in order to cope with a heavily depleted workforce. Any changes should not be in breach of the relevant employee’s contract of employment as a change in job role which is not permitted by the employment contract may entitle the employee to seek damages or, where the breach is fundamental, to resign and claim unfair constructive dismissal. Consultation and communication with employees is essential in order to obtain their support for any necessary changes.

5. Recruiting temporary staff

Employers may wish to employer temporary staff to carry out key business functions, if there is a heavily depleted workforce. Employers should bear in mind that hiring temporary staff is likely to become more expensive when the Agency Workers directive is given effect in UK law. This legislation, which is expected to come in to force this year, will give agency workers the right to terms and conditions of employment comparable to those of permanent staff after 12 weeks of employment.

6. Lay off and redundancy
Conversely, some businesses may find that an emergency situation leads to a loss of business, resulting in the need to make lay offs or redundancies. Employers should be aware that it can only lay off an employee is there is an express or implied contractual right to do so. Without this, the lay off will be a fundamental breach of the employment contract, entitling the employee to resign and claim constructive dismissal.

The Business Contingency Plan

Managing these employment issues should form part of the business’ overall approach to emergency planning.
Business continuity management (BCM) is a process that helps businesses to manage risks to effect the smooth running of a business and continuity of critical functions in the event of a disruption, and effective recovery afterwards.

BCM involves:

Identifying the key products and services that the organisation delivers.
Carrying out a risk assessment to identify potential threats to the organisation and their likelihood.
Developing incident management plans and business continuity plans, for example a plan to deal with the immediate impact of an event, for example staff evacuation or a media response.
Key staff rehearsing the plan and testing systems which are to be relied upon in the event of an emergency.
Training those people who are responsible for acting in the event of disruption and those who will be impacted by the plans.
Reviewing and maintaining the plans to ensure they are kept up to date, with regard to staff changes, changes to the organisation’s functions or services, organisational structure, or strategic objectives and details of suppliers or contractors

However, employment issues can be considered more fully by examining a number of further areas:

List the key business functions and the minimum number of employees required to carry out these functions.
List the transferrable skills of each employee and consider who can be easily retrained or redeployed.
Consider whether any specific precautions need be taken in respect of health risks, for example, in the event of a flu pandemic, an employer could consider making temporary changes to working practices, such as avoiding face-to-face meetings.
Consider whether there are any alternative premises which can be used in the event of a major disruption, such as a fire, flood or terrorist incident where office premises become inaccessible.
Consider whether employees could work at home on a short term or long term basis, using remote access and if so, how the employers obligations regarding health and safety, working time, confidentiality and data protection will be maintained during home working.
Consider how information will be communicated to employees, customers, clients and suppliers in the event of an emergency situation

Preparing a Business Continuity Plan should assist the employer in meeting its obligations under health and safety legislation, as well as providing a means to minimise disruption to business function as a result of the emergency.

A survey published in March 2009 by the Chartered Management Institute, examined how effectively Business Contingency Plans if activated, had been in enabling organisations to support employees through the disruption. The survey found that there was strong agreement that the BCP had both helped to cope with the immediate effects of an incident on employees and had enabled the organisation to manage those employees while in the continuity phase following a disruption.

The Chartered Management Institute recommends that all organisations have a robust and proportionate approach to Business Continuity Management. It recommends that BCM capabilities are not degraded as a result of the current economic conditions and that whilst there may be pressure to cut budgets, organisations should carefully consider the potential impact of a prolonged disruption – for instance on customer relationships, sales and cash flow – in an already challenging economic climate. The involvement of the HR function will help to ensure that the BCP addresses employee needs.

For further information, please contact Sharon McArdle, Associate Solicitor, Employment Department on Belfast 028 9055 3300 or email, sharon.mcardle@tughans.com.

The content of this article is provided for information purposes only and does not constitute legal or other advice.