Institutions and providers are expected to have in place robust processes to ensure compliance with COVID-19 rules and requirements. Any breaches are expected to be dealt with through existing misconduct policies and disciplinary procedures with due process. Institutions must put in place suitable ways of enforcing failure to comply with regulations or guidance by students, including making it clear that failure to adhere on or off campus may be treated as student misconduct.
Under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, both the police and local authorities have certain enforcement powers. They may take such action as is necessary to enforce any legal requirement under the Regulations. This can include giving prohibition notices to someone who is contravening a requirement. The police have special powers to disperse gatherings and return to the place where they are living. A person who breaches the requirements in legislation relating to (for instance) the mandated wearing of face coverings or implementing physical distancing measures commits an offence. It is a defence if the person had a reasonable excuse for breaching the requirements. The police can issue fixed penalty notices in relation to offences.
Health and safety compliance
Employers should also put in place, with trade union or workforce representatives, robust local arrangements to monitor compliance with new operational arrangements. Remedial actions should flow from that monitoring, and be augmented by advice, guidance and support from external enforcement authorities.
It is vital during restart for workers, staff and students to have confidence in the steps being taken by their employers. Employers should look to establish processes to allow employee feedback on physical distancing and safety protocols, enabling employees to input on areas of concern and for employers to act upon these concerns.
A single point of contact has also been established for trade unions or workforces to help the Scottish Government understand how all COVID-19 workplace guidance is being implemented, and to help shape and refine that guidance based on the real experience of workers in the workplace. The mailbox can be contacted at: firstname.lastname@example.org.
This contact is not intended to be a reporting mechanism for potential breaches of legislation.
Under the Health and Safety at Work, etc. Act 1974 (HSWA), the Health and Safety Executive is the relevant enforcing authority for worker safety. The HSE can be contacted by phone on 0300 003 1647 or online at HSE contact form.
Local authorities also have powers under public health legislation, for example, covering whether businesses should be operating, the requirement to take all reasonable measures to maintain 2m distancing, or to ensure your workers, staff and students in the shielded category can follow the NHS advice to self-isolate for the period specified.
The HSE and Environmental Health Services have agreed to maintain the way they allocate different businesses for enforcement according to existing health and safety law for the purposes of workers’ health and safety.
Where the enforcing authority identifies employers who are not taking action to comply with requirements under public health legislation 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. It is important to highlight that this guidance is not legally enforceable and therefore it cannot be said that a failure to follow the guidance could lead to enforcement notices or prosecution. Only failure to follow legal requirements can trigger these enforcement mechanisms.