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Allowing or encouraging a return to the office – the potential legal liabilities: Scotland

Posted: 29th July 2020

As the UK continues to come out of lockdown, these briefing notes consider the potential legal liabilities around allowing or encouraging a return to the office for employers in Scotland.

This note was first published on 21 July 2020.  It has been updated as of 5 August 2020 to reflect recent developments and the publication of new Scottish Government Guidance.

1. Can my workplace re-open?

On 9 July 2020 the First Minister confirmed in a statement to the Scottish Parliament, that Scotland was moving to the third phase of the lockdown easing and an update to Scotland’s Route Map was published.  With effect from 15 July various additional businesses and venues could reopen, however, crucially, non-essential office workspaces and call centres should remain closed and those who can work from home should continue to do so.

It had been expected a date would be announced for non-essential offices and call centres, permitting them to re-open “once relevant guidance has been agreed and with physical distancing”. However, the announcement on 9 July confirmed that would not occur before 31 July 2020, with the next review due to take place on 30 July 2020.

On 30 July the First Minister confirmed in a statement to the Scottish Parliament that non-essential offices and call centres should expect to remain closed until at least 11 September, and possibly until later. Even then, working from home and working flexibly will remain the default position.  This is further confirmed by the Scottish Government guidance on homeworking, published on 23 July 2020 which states: “In short, employers should continue to maximise homeworking in their organisations. This is the Scottish Government’s position and will continue to be when we move into Phase 4 of the Route Map.”

A difference of emphasis has however emerged as between the Scottish Government’s position and that of the UK Government with implications for the approach North and South of the Border. The UK Government updated guidance on working safely during COVID-19 in offices and contact centres (applicable to England) states “in order to keep the virus under control, it is important that people work safely. Working from home remains one way to do this.”  However it is also worth noting that the UK Government’s “5 steps to working safely” does still include “help people to work from home” as one of the five steps.

2. What does this mean?

In Scotland, for non-essential offices and call centres, the position is therefore unchanged and remote working remains the clear default position.

The relevant law is contained in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (the “Scottish Regulations”), which mandated the closure, or restricted operation, of certain specified business premises as well as placing restrictions on movement during the coronavirus crisis. These have now been subject to multiple amendments.  The Regulations continue to impose a legal duty “to take all reasonable measures to ensure that the required distance is maintained between any person on the premises”.  In relation to non-essential offices and call centres, “the required distance” is “at least two metres”.  Thus, social distancing is specifically legislated for, unlike the equivalent English Regulations.

An individual commits an offence if they contravene the requirements set out in the Scottish Regulations and an employer (including both a corporate entity and an officer of the company such as a director or manager)  will also be liable if the offence has been committed with the “consent or connivance” of the officer, or is attributable to the “neglect” of such an officer.

In addition to implementing measures to ensure social distancing when workplaces begin to open, employers must comply with the UK’s pre-existing health and safety legislation, (which applies in both Scotland and England) and which requires them to undertake risk assessments to identify appropriate measures to keep workers safe in the workplace (see further below).  A specific COVID-19 risk assessment is now also required throughout the UK.

3. What is required by health and safety legislation?

In the UK organisations have a legal duty to protect their employees and others from risks to their health and safety under existing health and safety legislation. This includes taking reasonable steps to protect employees and others from coronavirus. This will not necessarily prevent an organisation from allowing or requiring workers to return to the office – but it will require consideration as to whether a reasonable step would be to require or allow continued working from home, and if so on what basis and to what extent.  The practicalities of enabling social distancing in office buildings is likely to mean that at least some continued home working may be required for some time to come.

The process of identifying the reasonable steps to be taken is by carrying out a risk assessment. It is already a legal requirement to undertake risk assessments and, if an organisation employs more than five people, the assessment must be recorded in a written document.

The Health and Safety Executive (“HSE”) has provided a step by step guide to working safely during the coronavirus (COVID-19) outbreak (https://www.hse.gov.uk/coronavirus/working-safely/index.htm)

A sample COVID-19 Risk Assessment to assist organisations has also now been published: https://www.hse.gov.uk/coronavirus/assets/docs/risk-assessment.pdf

The UK Government and the Scottish Government has also published specific guidance for different workplaces.  The Scottish Government has now published guidance for call centres and customer contact centre environments; UK government guidance for offices and contact centres had been published previously.

The Scottish Government has also now published guidance on homeworking and individual risk assessment in the workplace.

4.  the HSE and Government workplace guidance supported by legislation?

The HSE and UK / Scottish Government workplace guidance is not supported directly by specific legislation beyond the Scottish Regulations, the equivalent regulations elsewhere in the UK and pre-existing health and safety legislation.  However, while the guidance is not legally binding, it will still be extremely relevant when considering whether employers have complied with their existing health and safety duty to do all that is reasonably practicable to ensure safety. The HSE guidance on completing COVID-19 risk assessments specifically directs employers to consider the Government workplace guidance.

Requiring or allowing people to work from the office where they are able to work from home may in itself constitute a breach of health and safety obligations, or may contribute to a breach when considering the approach taken more widely to reopening workplaces and seeking to protect workers. A breach of health and safety law is a criminal offence with liability attaching to both organisations and individuals.    Enforcement can range from enforcement notices to unlimited fines, disqualification of Directors and even imprisonment for individuals.  Employers will therefore need to be comfortable and confident that they have carried out a sufficient risk assessment, assessing working from home as a control measure, before permitting any return to the office (particularly where improved productivity is the reason for the return).

While the Scottish (and UK) Government workplace guidance may not be legally binding, the reality is that employers will be vulnerable to allegations of health and safety law breaches if they do not follow the guidance. Further, another practical reason for being able to demonstrate compliance  with the Government guidance is that, if one worker tests positive for coronavirus, this should assist the employer in navigating the Scottish Government’s test and trace system so as to keep the majority of workers in the workplace insofar as this is otherwise permitted:

https://www.gov.scot/publications/coronavirus-covid-19-test-and-protect/pages/advice-for-employers/

This is because the requirement for an individual to self-isolate applies where one worker has been in close contact with another.  If an employer can demonstrate that the required social distancing measures are in place, the presumption will be that the infected worker will be less likely to have been in close contact with other workers.

5. If an employee wants to return to work, can we now let them come back to the office?

In short, potentially yes, as there is no outright ban on employees returning to the office. However, in Scotland this is strictly provided that the employer can demonstrate that measures are in place to ensure compliance with the latest form of the legislation and available guidance.  Organisations should be aware that the Scottish Government is firmly placing the emphasis on continuing to maximise working from home, even when we move into Phase 4 of the Scottish Route Map.  The guidance for homeworking states that “organisations should make every reasonable effort to make working from home the default position. Where a worker can perform their work from home, they should continue to do so.”

If employers are confident that these requirements are made out, they should nonetheless be aware that an employee could still have potential claims against the employer even if the employee was the one pushing for an early return.  To mitigate these risks, employers should ensure that they have undertaken a risk assessment and made the necessary adjustments required in order to manage the risk of transmission.

Liability for such claims will reflect the injury or losses suffered by the individual. Proving causation will be an issue for employees if they decide to pursue a claim – although the PR consequences of an employee (or a group of employees) contracting, or at least allegedly contracting COVID-19 at work should also be taken into consideration.

If an employee does not want to come back to work, this will substantially impact the assessment.  It is unlikely that an employer could reasonably force them to return to work, at least without extensive discussion and extremely good reason, whilst both the UK and Scottish Government guidance remains that if you can work from home you should do so (and particularly if they have been advised that they should be shielding).  If an employer is considering compelling an employee to attend work, it should document carefully its reasons for doing so, and ensure it has conducted a detailed health and safety risk assessment as well as clearly communicate to employees the safety measures they have put in place.  Even then, the employer should be cognisant of the risks of the employee raising issues with the HSE, as well as any discrimination, personal injury or breach of employment contract claims they might bring. It may also be possible for the employee to bring claims under the specific health and safety provisions of the Employment Rights Act which provide protection against detriment or dismissal for certain conduct “in circumstances of danger which the employee reasonably believed to be serious and imminent”.

6.    Will a waiver of claims by the employee protect the employer?

Employers could ask those who wish to return to the office to sign a waiver of all claims relating to them doing so.  However, this would be largely ineffective, and it is not recommended.  The Unfair Contract Terms Act 1977 (as it applies to Scotland) prohibits the waiver of liability for breach of duty in respect of personal injury claims including those arising from disease and relating to death.  Insisting that an employee sign an unenforceable waiver is likely to be an unreasonable act by the employer and continued insistence could ultimately give rise to a claim for constructive dismissal. It will also undermine the employer’s assertions that the workplace is safe and will not assist with the management of reputational issues should an employee contract the virus and claim against the employer.

7. When is the position in Scotland likely to change, or when will additional guidance be published?

A review of the restrictions set out in the Regulations by the Scottish Ministers must take place at least every 21 days; the next review is due on 20 August 2020. With the Government in both the UK and Scotland coming under increasing pressure to open up city centres and encourage people to return to work, employers should continue to review the Scottish Government guidance and legislation to ensure they remain informed of their rights and obligations. However, as above, the Scottish Government have indicated that non-essential offices and call centres should expect to remain closed until at least 11 September, and possibly until later.

8. Is the position the same in England or Wales?

No, both England (through the Westminster Government) and Wales (through the Welsh Parliament) have introduced separate legislation to deal with the coronavirus pandemic and, as indicated above, a difference of emphasis has emerged in the guidance applicable to England. Please contact us for information about the latest position elsewhere in the UK.

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