When the lights go out

Power failures are most likely to happen when demand is at a peak - and that means right now. Employers could be liable for injuries and distress, argues Penny Lewis

If predictions of further blackouts are correct, an excellent gift this Christmas would be a torch. Serious power failures have occurred in the summer in North America, London, Copenhagen and Italy. With winter approaching the electric grid will be under increasing pressure to maintain energy supplies.

Malcolm Grimston, a senior research fellow at Imperial College's Energy Policy and Management Group warns that because of "insufficient reserve margin on the system" there will inevitably be further power failures when electricity demand is at a peak.

If there is another incident it could cost British employers millions of pounds in compensation claims. Bosses might face investigation or prosecution by the Health and Safety Executive (HSE) if they fail to devise suitable contingency plans.

Peter James, a health and safety lawyer at Parabis Law says "One can envisage claims from workplace accidents caused by sudden loss of lighting, power to lifts or failure of air-conditioning systems in hot weather. Panic-induced trampling could occur, particularly if personnel are not promptly informed of the cause of the failure." Stress claims might also be brought, particularly if staff are left in the dark about what has happened and suspect an Al-Quaeda attack.

Employers have a legal duty to safeguard the health, safety and welfare of employees and visitors. James points out that "most businesses have evacuation strategies in cases of fire or potential terrorist attack." There is, he believes, justification for incorporating "an appropriate response to deal with total sudden power loss." The litmus test of an appropriate response is whether a scheme ensures, so far as reasonably practicable, the health, safety and welfare of those concerned. James refers to the Health and Safety Regulations 1999 which requires employers to undertake a "suitable and sufficient assessment" of workplace risks. In James' opinion "There are certainly identifiable dangers associated with swift and protracted power failure at work. Further widespread electricity failures are foreseeable. Accordingly, there is a compelling argument that a risk assessment should address the repercussions of such eventuality." Secondary lighting sources, generators and evacuation procedures appear to be primary options.

Even if there is back-up illumination this is unlikely to provide full lighting everywhere and there may be a short time-lag before emergency lighting comes on. Accidents during darkness, complete or partial, could lead to HSE investigation or prosecution, particularly if there has been serious injury.

Health and safety prosecutions are worrying because liability is absolute save for the defence of reasonable practicability. Reliance upon the HSE might be relevant. James states that "in defending HSE prosecutions employers might argue that they had done everything that was 'reasonably practicable' if they had followed the advice of the HSE."

It is also conceivable that a company that relies on HSE recommendations might be able to seek redress from them in respect of liabilities they become exposed to, an issue which is currently being tested by Thames Trains insurers in proceedings against the HSE. They hope to obtain a contribution from the HSE towards its settlement of claims from victims of the Ladbroke Grove rail crash.

Barrister Tom Roe specialises in employer's liability. He comments that another relevant dimension is fire safety. "Building regulations apply to those who build a building in the first place, or modify one," Roe says. For many years this has meant having "an appropriate means of escape in case of fire... capable of being safely and effectively used at all material times." Although emergency lighting is not mentioned Roe comments: "It is hard to see how an escape route which cannot be safely used when the power fails during a fire is 'appropriate'."

A "British Standard" details requirements about the required intensity of emergency lighting. Roe notes that whilst this is not law, "no doubt compliance (or failure to comply) with British Standards is relevant to the question of whether the means of escape are appropriate". Employers also "have a duty under the Fire Precautions (Workplace) Regulations 1997 to provide emergency lighting". Regulatory breach is an offence but does not give rise to civil liability.

In practice the sophistication of emergency lighting may depend on a property's age or when it was last significantly refurbished. Thourie Istephan, an architect with Foster and Partners, advises the company on health and safety issues. She explains that when it comes to escape routes "what is significant is what regulations applied at the time the property was built or if it goes through a material change".

Fosters also consult specialist mechanical and electrical engineers on lighting. Under current legislation and to comply with the British Standard, Istephan says that new buildings need, as a minimum, "lighting which would illuminate the main access route to the stairs. Exit signs have to be illuminated or adjacent to an emergency light." Large open plan areas need emergency lighting on the floor and alternative power sourced lights in areas without natural lighting. Battery powered lights must provide enough time to evacuate. An engineer at Westminster Council points out that batteries should be regularly checked.

Prestige developments such as the Swiss Re building at St Mary Axe will have lighting systems which mean that those working there are unlikely even to be aware of a blackout. A Canary Wharf spokesperson reassures that the offices were designed with "backup from a number of different sources".

QC Graham Eklund warns that legislation has enabled electricity supply companies "to restrict their liability for economic loss caused by negligence disrupting the supply." So, it's likely "economic losses consequent on a negligently caused blackout or failure of the electricity supply" will not be recoverable. Impressive as cutting edge buildings are, those working in less glamorous offices might need to give greater thought to contingency plans.