20 Jan 2021
By Donna Reynolds, Partner and Accredited Specialist in Employment Law at Blackadders LLP
The First Minister, Nicola Sturgeon, announced a further six measures, to take effect from Saturday 16 January 2021, to help stop the spread of COVID-19.
Home working
This is what she had to say in relation to home working:
“Fourthly, and significantly, we intend to strengthen the obligation on employers to allow their staff to work from home whenever possible. The law already says that we should only be leaving home to go to work if it is work that cannot be done from home. This is a legal obligation that falls on individuals. However, we will now introduce statutory guidance to make clear to ensure that employers support employees to work from home wherever possible. For all employers, the basic but vital message is that if your staff were working from home during the first lockdown, they should be working from home now and you should be facilitating that.”
The Scottish Government has since published its ‘Strengthening lockdown restrictions’ which states:
“Working from home arrangements will be strengthened through updated statutory guidance. Working from home should now be the default position for all businesses and services, and only those who cannot do their job from home should be asked to go to the workplace.”
The ‘Coronavirus (COVID-19): stay at home guidance’ has also been updated and gives a list of “reasonable excuses to go out” including:
“for work or an activity associated with seeking employment, or to provide voluntary or charitable services, but only where that cannot be done from your home.”
To help explain the legal responsibilities of employers, the ‘Coronavirus (COVID-19): guidance on working from home’ states,
“The law on working from home for employers
If you are responsible for carrying on a business or providing a service in a Level 4 area you must, by law:
Guidance issued by the Scottish Government includes the ‘Coronavirus (Covid-19): general guidance for safer workplaces’. The regulations are The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020.
What does this mean for your business?
Statutory guidance is still guidance but only exceptionally and with good reason should businesses not adhere to it.
Businesses should revisit any decisions taken in relation to any role which was previously thought could not be reasonably carried out from home. For example, if a role was carried out from home during the first lockdown that is likely be considered a compelling reason for it to be carried out from home going forward.
However, if the view remains that a role cannot be reasonably carried out from home at this time, it would be sensible to document the reasons why and explain your reasons with any employee falling into this category. Risk assessments should also be revisited to make sure all potential risks are identified and addressed.
If you would like more information about home working or how to make your workplace covid-secure, please get in touch with Blackadders' Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Donna Reynolds, Partner Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law Employment Law Blackadders LLP @EmpLawyerDonna, www.blackadders.co.uk
