15 January 2021
As we are all very much aware, restrictions have been tightened since the start of the year. Various types of business (hospitality, non-essential retail etc.) must remain closed. For others, where there is no specific requirement to close, and where the employer intends to continue to operate, the focus remains, as for the last 10 months, on homeworking.
The Scottish government has published extensive and helpful guidance for employers in relation to homeworking which comes complete with a useful checklist of the main issues.
Guidance: https://www.gov.scot/publications/coronavirus-covid-19-guidance-for-homeworking/pages/overview/
The current legal position is that employers have a legal duty to take all reasonable steps to minimise the spread of coronavirus and support working from home if the work can be done remotely. For the individual employee, it is now the law that we all must stay at home unless there is a reasonable excuse for leaving home. A reasonable excuse includes attending work but only where that cannot be done from home.
The guidance asks employers to look again at their operations and take “every possible step” to facilitate homeworking, including providing IT and other equipment that is required to carry out the job. Employers should look at each workplace activity or function on an individual basis and consider whether it can be done from home.
The guidance sets out a presumption that if employees were working from home during the March/May 2020 lockdown, they should also be working from home currently.
Where there is a genuine requirement for staff to come to work, the guidance reminds employers of the need to carry out risk assessments and take all appropriate infection control measures. Employees should be given detailed information about what the employer is doing to safeguard health.
For those who are homeworking, the duty to take reasonable care of health and safety remains. The guidance highlights the need to carry out a risk assessment, a Display Screen Equipment workplace assessment, and to ensure that employees take their breaks.
Employers may wish to remind staff about the types of conduct/communication that are or are not acceptable, and ensure that video call facilities are not used to facilitate bullying or harassment.
The guidance also encourages employers to think about the protected characteristics under equality legislation – race, sex, religion, disability, age, sexual orientation, transgender status, marital status, pregnancy/maternity – and to ensure that homeworking arrangements do not disadvantage them.
There could be a sex discrimination issue if employers refuse to accommodate the needs of employees who have childcare responsibilities while the schools are closed (it may be argued that women tend to have primary childcare responsibility so are disproportionately affected compared to men). Reasonable adjustments should be considered for employees who have a disability. For example, is an employee with a mental health issue going to be adversely affected due to the isolation of remote working?
Furlough of course remains an option for employees who cannot work due to childcare responsibilities (assuming they meet the other eligibility requirements) but furlough should not be applied in a discriminatory manner. The current “flexible furlough” scheme allows employees to work part of the week and be furloughed for other parts, and that does provide more options. At present, the furlough scheme is due to run until 30 April 2021.
The guidance emphasises the need for communication and engagement, and we agree that, as always, this is the key to managing workplace issues and addressing any issues of concern before they become insurmountable. Employers should recognise the challenges that for many staff are inherent in these new remote working arrangements, and accept that during an unprecedented global pandemic, accommodations are likely to have to be made.
BTO’s Employment Law team can advise employers and employees on all of these issues. Please do not hesitate to contact us if you have any questions.
This update contains general information only and does not constitute legal or other professional advice.
Employment law:
Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271