With effect from Tuesday 5th January 2021, the Scottish Government passed ‘stay at home’ regulations which derive from The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 under statutory law. These regulations place a duty on employers to take all reasonable steps to minimise the spread of coronavirus. This includes supporting staff to work from home for those roles that can be undertaken remotely. If staff were working from home during the first lockdown in March 2020, then they should be working from home now. The rules also place a legal duty on individuals to stay at home, which can result in fixed penalty notices or even court attendance with fines up to a maximum of £10,000. By law, everyone must stay at home unless they have a reasonable excuse for leaving the house. This can include leaving home to go to work, but only if an employee’s role cannot be done from home.
As an employer, if you are responsible for carrying on a business or proving a service in a Level 4 area you must, by law:
- take measures which are reasonably practicable to minimise the risk of the incidence and spread of coronavirus on your premises, including for example controlling the use of, or access to, your premises (paragraph 8) of the regulations;
- have regard to guidance issued by the Scottish Government about such measures, including this guidance (paragraph 9) of the regulations
As a benchmark, if your staff were working from home during the first lockdown in March 2020, then they should be working from home now. All employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home. Every function that can be done by people working at home should be done in that way.
Employers are responsible by law for the health, safety and welfare at work of their workers and these responsibilities apply wherever their staff are working. Arrangements for the welfare of employees must provide for homeworkers, as well as those who work in the employer’s workplace.
Employers should not ask or direct their employees to commit an offence, nor should they put in place any arrangements which would encourage or allow their employees to break the law.
Failure to have regard to these duties can result in enforcement actions under public health regulations. Under the Health and Safety at Work etc. Act 1974 (HASAWA), local authority Environmental Health Services will usually be the relevant enforcing authority for how you control the risk of coronavirus in your area. In some cases, it may be the Health & Safety Executive, but in any case, enforcing authorities will apply the same requirements.
Local authorities also have powers under public health legislation, for example, covering whether businesses should be operating physical distancing requirements, or to ensure workers in the shielded category can follow the NHS advice to self-isolate for the period specified. Where the enforcing authority identifies employers who are not taking action to comply with public health guidance to control COVID-19 health risks to workers, they will consider a range of actions to improve control of workplace risks, including the provision of specific advice to employers through to issuing enforcement notices or even prosecution.