FROM today (March 21st), businesses in Scotland have no legal requirement to keep Covid measures in place. In light of this change, Donald MacKinnon, Group Legal Director at employment law and HR support firm WorkNest, has provided answers to some of the important questions that businesses may now have.
Q. What restrictions are lifted for businesses on March 21st?
“From 21st March, all Covid related restrictions in the workplace will be lifted and will be replaced by guidance rather than legal obligation. Businesses will not be legally required to take steps to reduce the spread of Covid. This includes things like physical and social distancing measures and screens. Businesses also won’t be legally required to retain customers’ contact details.”
Q. What is the legal obligation now to keep employees safe from Covid?
“There will be no specific legal obligations concerning Covid after 21st March for Scottish employers. The legal obligations will simply be the general obligations to maintain a safe workplace under health and safety legislation. General health and safety duties ensure businesses protect the health and wellbeing of employees, including steps to protect them from illness – a category which Covid would fall into.
“However, there will be Government-issued guidance concerning Covid which businesses should follow. Businesses can protect themselves by following the guidance and keeping measures in place that they deem suitable. (See current details here)
“It is somewhat subjective now as to what a business needs to do and it differs significantly between businesses. However, in the event of a complaint from an employee, it is useful for a business to be able to demonstrate that it has followed guidance.”
Q. Where do businesses stand if employees don’t want to go to their workplace with protections removed? (e.g. those concerned/vulnerable)
“There is no straightforward answer for this, so businesses should always get expert advice for its specific situation. However, a sudden removal of all measures just because it’s not a legal requirement anymore could cause unrest amongst some employees so a common-sense approach is needed.
“You should still aim to put in place measures that will mitigate the risk of having positive Covid cases on site, as per government guidance, but allow your business to operate well. These could include distancing, reallocating roles and hybrid working or working from home. You could also focus attention on those who are most vulnerable and look to put in place adjustments for them, particularly since they may qualify as disabled for Equality Act 2010 purposes.
“For employees who do not wish to attend the workplace, there will be practical and legal implications. If an employee’s contract of employment states that they are based in the workplace, such as the office or a factory, an employer is entitled to require attendance, subject to any steps that should be taken to protect and assist disabled employees in order to comply with Equality Act obligations.
“An employee is entitled to refuse to attend only if they hold a reasonable belief that the workplace poses a serious and imminent danger to them. If a worker raises concerns, care should be taken. The concerns should be properly considered and investigated before considering taking action against the employee.
“Therefore, businesses should demonstrate to employees that general health and safety obligations are complied with, with appropriate measures in place to protect staff. This includes undertaking a risk assessment and mitigating – so far as you can – any risks to the employee. If you incorporate adequate Covid measures into this then you should be meeting your responsibilities as an employer well.
“Being able to prove that you adhere to your duty of care – both legally and morally – to protect their wellbeing will help employees to feel comfortable in a return to work, as well as provide businesses with the relevant legal protection.
“An employee can also put in a flexible working request to allow home working if that is feasible in their role.”
Q. What happens now when an employee has Covid? Do they isolate and do they receive full pay?
“Advice and guidance to self-isolate in certain circumstances will remain in place in Scotland (see here). However, as is now the case in England, this is just guidance and not a legal requirement. This raises some difficult questions in respect of what employers should do if they test positive and what they should be paid if they can’t work as a result.
“Depending on your business, the employee may still be able to work or do some parts of their role from home. This is only if they are not unwell with Covid so that they cannot work. If they are unwell, then it should be treated like any other illness and they will be off work and paid according to your company’s sick pay policy or on statutory sick pay (SSP).
“Where the job doesn’t allow someone to work from home and the person isn’t unwell is where it gets a bit trickier.”
“If an employee decides that they want to follow the government advice then they should not be penalised for doing this. They will be entitled to SSP until Covid-related provisions for SSP are removed and subject to any alternative provisions that may be introduced by the Scottish government, or occupational sick pay depending on the scheme. This will also be the case if the employer requires the employee to self-isolate and the employee agrees with this.
“If the employer is requiring an employee to self-isolate, and they do not want to, then they may be entitled to full pay on the basis that it may be a health and safety suspension rather than a sickness absence.
“This creates a bit of a problem for an employer. On the one hand, there are health and safety obligations which are likely to be impacted by allowing employees who have tested positive for Covid on site; on the other hand, it may cost them to not have them on site if they can’t work from home.
“That is why it’s going to be very important that specialist health and safety advice is obtained to ensure that if the employer is not going to require self-isolation that any alternative measures are adequate and appropriate, bearing in mind the impact a COVID-19 outbreak may have on employees and your business.”
