What the law says
- the law on working from home for employers
- the law on working from home for individual employees
Working from home protects the NHS and saves lives. The stay at home regulations came into effect on 5 January 2021 which places a duty on employers to take all reasonable steps to minimise the spread of coronavirus. This includes supporting staff to work from home for those roles that can be undertaken remotely. If staff were working from home during the first lockdown in March 2020 they should be working from home now.
The rules also place a legal duty on individuals to stay at home. By law, everyone must stay at home unless they have a reasonable excuse for leaving the house. This can include leaving home to go to work – but only if your job cannot be done from home.
If you are responsible for carrying on a business or proving a service in a Level 4 area you must, by law:
- take measures which are reasonably practicable to minimise the risk of the incidence and spread of coronavirus on your premises, including for example controlling the use of, or access to, your premises (paragraph 8) of the regulations
- have regard to guidance issued by the Scottish Government about such measures, including this guidance (paragraph 9) of the regulations.
As a presumption if your staff were working from home during the first lockdown in March 2020 they should be working from home now.
All employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home. Every function that can be done by people working at home should be done in that way.
Employers are responsible by law for the health, safety and welfare at work of their workers and these responsibilities apply wherever their staff are working. Arrangements for the welfare of employees must provide for homeworkers, as well as those who work in the employer’s workplace.
Employers must not ask or direct an employee to commit an offence by requiring travel for work that it is possible to be done from home. Nor should employers encourage, authorise or make arrangements that would allow or put pressure on their employees to break the law.
Failure to have regard to these duties can result in enforcement actions under public health regulations.
Under the Health and Safety at Work etc. Act 1974 (HSWA), local authority Environmental Health Services will usually be the relevant enforcing authority for how you control the risk of coronavirus in your area. In some cases, it may be the Health & Safety Executive, but in any case, enforcing authorities will apply the same requirements.
Local authorities also have powers under public health legislation, for example, covering whether businesses should be operating physical distancing requirements, or to ensure workers in the shielded category can follow the NHS advice to self-isolate for the period specified.
Where the enforcing authority identifies employers who are not taking action to comply with public health guidance 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.
If you are able to work from home you must do so.
The regulations state that anyone living in a Level 4 area must not leave the place they are living without a reasonable excuse. This can include leaving home for work or provide voluntary or charitable services, but only where it is not possible for the person to do so from home.
If individuals do not comply with these rules they could face a fixed penalty notice of £60 and further fixed penalty notices for additional offences up to a maximum of £960. If you refuse to pay a fixed penalty or the police consider it necessary, you may also be taken to court and receive a fine up to a statutory maximum of £10,000.
If you feel your role can be done by working from home and you are currently attending your workplace, you should discuss arrangements with your employer.
As stated in the employer section above, your employer has a legal duty to take all measures which are reasonably practicable to minimise the risk of the incidence and spread of coronavirus, this includes facilitating working from home for those roles that can be undertaken remotely. The presumption is that if you were working from home during the first lockdown in March 2020 you should be working from home now.
If you are seeking support or looking to take things further, you may find the following sources useful:
- if you have a union representative, you may wish to contact them in the first instance for advice and support
- The Advisory, Conciliation and Arbitration Service (ACAS) website: Further advice from ACAS can also be given by telephone on 0300 123 1100.
- workers can also raise enquiries about working safely with the Health and Safety Executive and with Local Authority Environmental Health Officers who are responsible for office environments
- Scottish Hazards provide a free and confidential service for workers seeking workplace health and safety advice and support. This phone line is open Monday to Friday: call 0800 0015 022 for support, or see their website for other ways to get in touch.
- please see furlough guidance at Coronavirus Job Retention Scheme.