Yesterday the First Minister announced further steps would be taken to tighten the temporary lockdown which began on 5 January 2021.

One of those is in relation to strengthening the obligation on employers to enable employees to work from home wherever possible.

Since the first lockdown in March 2020 the default position has been that everyone in Scotland should work from home wherever possible. From 5 January there is a legal obligation on individuals not to leave home without a reasonable excuse. This can include leaving home for work purposes, but only if that work cannot be done from home.

In terms of the Scottish coronavirus regulations any business which is allowed to remain open must take measures to reduce the incidence and spread of the virus, so far as is reasonably practicable. This could mean taking measures such as restricting access to, and controlling movement around, its premises by only allowing those workers who cannot do their job from home to come into the office.

The legislation stops short of placing an explicit obligation on employers to enable employees to work from home, but the expectation from government is clear.

Employers also have a duty under health and safety legislation to ensure, so far as reasonably practicable, the health, safety and welfare of all of its employees, whether or not they are working at home or are in the office.

If the virus is transmitted in a working environment and an employer did not have in place reasonably practicable measures to control that risk, then the employer could be subject to enforcement action by the local authority and/or the Health and Safety Executive.

By introducing the new guidance, the government makes it clear that any employees who were working at home during the last lockdown in March 2020 should be working at home now.

Employers should use the guidance for workforce planning and support, to understand their health and safety obligations and to ensure they are communicating and engaging appropriately with staff on any decisions which are made.

It also contains an operational guide and checklist for employers to refer to when planning and implementing risk reduction measures.

This is perhaps the clearest message to date from the Scottish Government in relation to working from home, and puts the work at home guidance more into line with the lockdown rules in England.

While some industries, such as construction and oil and gas, are allowed to remain open, you should consider whether any of your staff, such as those which are office based, really need to work in the office.

If you need any help or guidance in navigating the restrictions or you need support or advice in relation to making your workplace “covid secure”, do not hesitate to get in touch with our Health, Safety and Corporate Crime team.