COVID-19: Implications for the Northern Ireland Energy Sector

The NI Department of Health published regulations on Saturday imposing new restrictions on businesses in Northern Ireland. 

With effect from 11pm on 28 March 2020 The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 placed restrictions on the movement of people and requiring certain businesses to close in the interests of public health. These regulations closely track similar regulations imposed elsewhere in the UK under the new Coronavirus Act 2020.

Operational energy projects

The regulations place significant restrictions on when people may leave their homes, although they do not require all businesses to close. Instead there is a list of "business subject to restrictions or closure" specified in the regulations, which does not include energy sector businesses. It is also notable that the recent statement from the Department of Health specifies that workers in oil, gas, electricity, waste and water may be considered "key workers" where they are maintaining essential public services.

In contrast the Irish Government has taken the reverse approach closing businesses other than those deemed essential services. These include: "Electricity, Gas & Water: electric power generation, transmission and distribution;  extraction and distribution of gas;  water collection, treatment and supply;  sewerage;  waste collection, remediation activities and other waste management treatment and disposal activities." 

The Irish Government has confirmed to the Irish renewables industry that the generation of electricity from wind farms is considered an essential service. Likewise, the regulations in Northern Ireland do not require the closing down of wind farms or other electricity generating stations.

Employers should note that the list of "business subject to restrictions or closure" is being kept under constant review. The Engagement Forum on COVID-19 organised by the Department for the Economy met for the first time on Monday 30 March 2020 and included unions and business and public sector organisations. 

Its purpose is to discuss the measures required to  protect the safety of key workers and essential businesses as well review the list of key workers and essential/non-essential businesses referred to in the regulations. No immediate changes came out of the first meeting, but a second meeting will be held on Wednesday 1 April. Any recommendations would then need to be approved by Minister Dodds.

Energy projects under construction

It seems however that employers in Northern Ireland should take care as regards wind farms or other generating stations currently under construction. Whilst these are not on the list of businesses to close, employers still have a duty to ensure employees' health and safety at work. For construction projects there are additional health and safety requirements under The Construction (Design and Management) Regulations (Northern Ireland) 2016.

This means that all employers in the energy sector should carry out a risk assessment and identify employees who are particularly at risk. Those with certain conditions may be reluctant to come into the contract with people who might have been exposed to the virus at work or on public transport. In line with Government advice such employees should be supported in working from home where possible.

Last week the Construction Employers Federation (CEF) in Northern Ireland said all "Following the statement by the prime minister last night [Monday], it is our view that, with the exception of essential works in support of the fight against COVID-19, non-essential construction work should cease."

Restriction on movement of employees

Employer's also now need to consider the restriction on movement of persons under the regulations. Regulation 5 requires that "During the emergency period, no person may leave the place where they are living without reasonable excuse [such as] to travel for the purposes of … where it is not reasonably possible for that person to work … from the place where they are living." To do so is now an offence punishable by a fine.

With this in mind employers should consider whether it is essential that their employees physically come to work, even where their business is not required to close. Most utilities in Northern Ireland are already operating on a work from home basis with minimal staff going into the office. 

Employers will likely have more difficultly where staff are required to attend site. For example, where an energy project is currently under construction it is clear that some work cannot be done from home. In this case industry guidance is clear currently that workers should not attend site. This may however present difficulty for employers under their construction contracts as they may not automatically be entitled to suspend work (see our separate memo on this issue). 

Where attendance on site is unavoidable then employers should continue to do everything they can to ensure social distancing at work, provide and monitor the use of PPS and comply with HSE(NI) guidance as much as possible. This will include taking practical steps such as closing canteens or other areas of social congregation.

The situation is clearly still very fluid, with statements from government being released daily. This is recognised in the regulations which require the Department of Health to review them every 21 days. The first review is required to take place by 16 April 2020, and so employers may consider suspending project construction or reducing staff for a short period while the situation becomes clearer.

Employers who choose to suspend works may consider taking advantage of the government furloughing scheme as regards their employees. For more information on this see our separate memo.

This note will be updated as developments occur.

Update 1 April 2020

We understand that the Department for Economy has now advised renewables industry representatives that they are following UK government advice which classifies the energy generation sector as a critical industry.  This, as we understand it, includes the construction of energy generation projects as well as their operation, which is consistent with the UK position and clearly differs from the position in Ireland. DfE has not issued written guidance to this effect yet and employers are therefore still advised to conduct their own risk assessments and consider whether it is necessary to have their staff travel to work. We will continue to update this memo as the situation evolves.

For any further information please contact Mark Stockdale, Partner in the Energy team, or Gareth Walls, Partner in the Employment & Incentives Belfast team.

Date published: 2 April 2020