The Scottish Government has published new guidance following the 'stay at home' regulations that came into effect on 5 January 2021. The guidance strengthens the working from home message in several ways.

What does the law say?

In a Level 4 area, individuals can only leave home for an essential purpose. There is a list of examples of reasonable excuses, including to go out for work, or provide voluntary or charitable services, where it is not possible to do so from home. Failure to comply with the legal duty to stay at home can result in a fixed penalty notice.

As an employer, 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; and
  • have regard to guidance issued by the Scottish Government about such measures.

This obligation to consider Scottish Government guidance includes the two sets of guidance published on 13 January 2021: Coronavirus (COVID-19): stay at home guidance and Coronavirus (COVID-19): guidance on working from home (and any sector specific guidance here). Failure to take guidance issued by the Scottish Government into account can result in enforcement action under public health regulations (by the Health & Safety Executive, local authorities or local authority Environmental Health Services by way of e.g. advice, enforcement notices or prosecution).

What does the guidance say?

The Coronavirus (COVID-19): stay at home guidance states that, "If you are able to work from home, you must do so wherever possible." Previous iterations of this message were not as strong (e.g. "you are strongly advised to work from home wherever that is practicable").

In another change, the current guidance makes it clear that if staff were working from home during the first lockdown in March 2020, they should be working from home now.

The Coronavirus (COVID-19): guidance on working from home was updated on 13 January 2021 to include a section on 'what the law says'. This mirrors the wording in the stay at home guidance on who should be working from home, and then goes further by stating:

  • All employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home including providing suitable IT and equipment to enable remote working.
  • Every function that can be done by people working at home should be done in that way.
  • Employers should not ask or direct their employees to commit an offence, nor should they put in place any arrangements which would encourage or allow their employees to break the law.
  • We now need every business to work with their workforce to look again at their operations, and to make sure every single function that can be done by people working at home, is being done in that way.

As well as reinforcing the working from home message, the Coronavirus (COVID-19): guidance on working from home is aimed at supporting employers to facilitate homeworking. There is information on enforcement, health and safety, discrimination and equality, and communication and engagement. A checklist is also provided to help identify factors to consider when implementing remote working.

In practice

The message is clear: workers should be working from home wherever possible. Not only that, if they previously worked from home during the first lockdown they should be doing so again now.

Bear in mind that although the position is very similar in other parts of the UK, it is not identical. For example, in England the wording in the guidance is, "you may only leave your home for work if you cannot reasonably work from home".  Always check the current guidance relating to your jurisdiction and sector.

If you would like more information on anything raised in this blog, please get in touch with a member of the employment and immigration team.


Julie Keir

Practice Development Lawyer