As lockdown restrictions began to ease across the UK many employers started to consider reopening businesses and bringing staff back into workplaces, but with the recent spike in COVID-19 cases many are rethinking their position.
While the UK government called for a coordinated approach to the lifting of lockdown measures, differences have emerged between the four parts of the UK. The devolved administrations in Wales, Scotland and Northern Ireland have made their own assessments on lifting measures in their countries and each has released lockdown in different stages.
It should also be noted that, even as nationwide lockdown measures have been lifted, local outbreaks have necessitated reactive measures to be implemented to control the rate of transmission of COVID-19 on a regional or local basis.
This article has been prepared to anticipate and address issues that employers may face as the lockdown measures that have affected their businesses and workforces are eased, takes account of government guidance on when and how businesses can emerge from lockdown, and is intended to assist employers as they prepare for a phased return to work.
The Legal Requirement to Close Businesses & Premises in Scotland
There is an array of legislation which deals with the various issues that are likely to arise as a result of the COVID-19 pandemic:
- The Coronavirus Act 2020
- The Coronavirus (Scotland) Act
- The Coronavirus (Scotland) (No.2) Act (the Act)
- The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103) (Principal Regulations)
- The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 10) Regulations 2020
- The Statutory Sick Pay (General) (Coronavirus Amendment) (No 3) Regulations 2020 (SI 2020/427)
- The Employment Rights Act 1996
- The Health & Safety at Work etc. Act 1974
The workplace guidance for Scotland differs from the English equivalent so it is important that the Scottish guidance is considered where the employer operates in Scotland. A UK-wide employer cannot assume that following the guidance applicable in England will meet the Scottish requirements.
In Scotland, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 sets out the legal requirement to close premises and businesses during the emergency period.
Part 1 of these Regulations, states that the ‘emergency period” starts when these Regulations come into force and ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Scottish Ministers terminating the requirement or restriction.
Part 1 of the Regulations also sets out the requirement for a review and termination of restrictions, namely:
- Scottish Ministers must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days.
- As soon as the Scottish Ministers consider that any restriction or requirement set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Scotland with coronavirus, the Scottish Ministers must publish a direction terminating that restriction or requirement.
Part 2 of the Regulations sets out the requirement to close premises and businesses and Schedule 1 (Parts 1, 2 and 3) sets out those premises and business that were/are required to close during lockdown.
Part 3, Regulation 5 sets out the restrictions on movement which, in the early phases of lockdown, meant people could not leave their homes unless they were a key worker, an essential worker or otherwise had a valid reason to under regulation 8(4).
Part 3, Regulation 6 sets out the restrictions on gatherings in public places, which during the emergency period was limited to no more than two people, subject to certain exceptions.
Emerging from Lockdown in Scotland
At the early stages of the pandemic, the Scottish Administration established it’s ‘Route Map’ for the easing of lockdown restrictions in Scotland. This Route Map comprises 4 phases.
Phase 1: Commenced 28 May
Phase 2: Commenced 18 June
Phase 3: Commenced 9 July
Phase 4: TBC
On 9 July Scotland moved to Phase 3 and regular 3-week reviews have been undertaken since then to determine what further restrictions, if any, can be eased. In their latest assessment of the status of the pandemic, the Scottish Administration has determined that Scotland does not yet meet the criteria for progressing to Phase 4 of the “Route Map”.
The latest guidance and measures from the Scottish Administration, which was last updated on 14 September 2020, came into effect immediately and extends for at least 6 months, unless revoked, but it did NOT impose any new restrictions on businesses and premises not already covered by existing guidance.
Accordingly, those business that must remain closed under the current regulations remain as follows:
- soft play centres
- indoor theatres and concert halls
Businesses and Premises That CAN Reopen in Scotland
Since 24 August 2020 various businesses and premises have been able to reopen as part of the progression of Phase 3 of the “Route Map”. This includes:
- Outdoor contact sports (all ages) can resume following guidance of relevant sports bodies.
- Outdoor seated live events and outdoor open space live events – with physical distancing, enhanced hygiene, and restricted numbers – following guidance. Work will be undertaken with the sector on options for larger pilot events.
- Driving lessons can resume – following guidance.
- Child contact centres can re-open – following guidance.
- Face-to-face advice services, including Citizens Advice, can resume – following guidance.
- Bingo halls can re-open with physical distancing and following guidance.
- Amusement arcades and casinos can re-open following guidance (incl. enhanced hygiene).
- Snooker/pool halls and indoor bowling can re-open – following guidance (incl. enhanced hygiene).
- Funfairs – both static and travelling – can re‑open, following guidance.
- Gyms (indoor) can re-open – following guidance.
- Swimming pools can re-open – following guidance.
- Indoor sports courts can reopen – following guidance, incl. skating, dance studios: Children (0-12) years can resume all activity; adults and young people (12+) can resume non-contact activity only.
- Indoor activities for children and young people (unregulated) can resume subject to guidance that will vary by activity. Indoor youth work can resume for young people in line with guidance.
So, Can Non-Essential Offices in Scotland Reopen?
The official Scottish Administration website explicitly states that, apart from those businesses and premises that must remain closed (listed above), it is not compelling other businesses to close, however, it also states that remote working should remain the default position for those who can do so.
The Scottish First Minister was quoted as saying, “A full return to office working, given the numbers involved, would significantly increase the risk of indoor transmission. It would also make buses and trains significantly busier and increases transmission risks there too. Our conclusion therefore is that a return to working in offices, unless that work is essential and cannot be completed at home, presents too great a risk at this time”.
The official guidance therefore appears to be somewhat unclear when it comes to the reopening of non-essential offices. However, what is clear from the legislation is the following:
- The restrictions set out in Part 3, regulation 5 and 6 have now been relaxed and there are no longer restrictions on travelling within the UK.
- Indoor non-office workplaces can reopen if guidance on physical distancing and other hygiene measures are in place. This includes places like factories, warehouses and labs.
- “Non-essential offices” is NOT listed in Schedule 1 of the Regulations.
So, can non-essential offices reopen? In short, YES. There is nothing in the legislation and/or guidance that says they cannot reopen and no reference to non-essential offices in Schedule 1 of the Regulations explicitly requiring them to remain closed. Therefore, the decision to reopen non-essential office is entirely in the hands of business owners.
What Should Employers Consider When Reopening Non-Essential Offices
When considering whether to reopen non-essential offices and bring staff back to work, it is important that Employers consider the following questions carefully:
- Is what you do essential or material to the effort against the virus or to the wellbeing of society?
- Is your business able to open in accordance with the current position in the Scotland’s Route Map?
- Are you able to demonstrate and give confidence to your workforce that you can consistently practice safe physical distancing and comply with ALL other standard health and safety requirements?
Once an Employer has decided to reopen its offices they should, in the very first instance, look for any sector specific guidance and follow it. Where there is no sector specific guidance, Employers should ensure that as a minimum, they take the following steps:
- Assess the risks to yourself, your employees, your suppliers and your customers. If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.
- Consult with your employees before you reopen – this is a legal requirement.
- Put in place infection and control measures.
- After re-opening, keep checking and reviewing.
Emerging from Lockdown in England
For England, the UK Government’s Recovery Strategy was published on 11 May 2020. The “cautious roadmap” which was intended to ease existing lockdown measures in a safe and measured way included a step-by-step approach to lifting restrictions on businesses.
On 17 July 2020, the UK Government published the next chapter in our plan to rebuild: The UK Government’s COVID-19 recovery strategy. This set out the next stages of the government’s plan following the measures announced in the initial Recovery Strategy through which the government hopes to see a return towards normality in Spring 2021. The next stages, which will apply in England are subject to the caveat that a resurgence of COVID-19 may mean that they cannot be followed safely (the government is preparing for different scenarios). The government warns people and businesses to be prepared for the eventuality that the timetable for reopening is paused, or for changes to be reversed in a targeted way, to respond to new outbreaks. However, the government will only do this if absolutely necessary.
From 1 August 2020, the UK Government took the following steps in England:
- Employers were given more discretion on how they ensure employees can work safely. While working from home is one way to do this, workplaces can also be made safe by following COVID-19 Secure guidelines.
- Most remaining leisure settings (bowling, skating rinks and casinos) could reopen in accordance with COVID-19 Secure guidelines. However, particularly high-risk activities and settings such as nightclubs will not reopen at this stage but will be kept under review.
- Subject to the success of pilots, indoor performances to a live audience will restart in accordance with COVID-19 Secure guidelines.
- All close contact services resumed (including any treatments on the face such as eyebrow threading or make-up application) with steps taken to ensure this can be done as safely as possible and in line with COVID-19 Secure guidelines.
- Pilots were undertaken in venues with a range of sizes of crowds, particularly where congregating from different places, including sports stadia and business events. These will be evaluated to inform future decisions on any further relaxation of the rules. If progress is made in line with expectations, pilots will expand to build up to and prepare for a full, socially distanced return in the autumn.
- Schools, nurseries and colleges reopened for all children and young people on a full-time basis.
Until 9 September 2020, the COVID-19 Secure guidelines applicable in England were supported by five key steps to working safely which employers needed to implement. They were:
- Carry out a COVID-19 risk assessment
- Develop cleaning, handwashing and hygiene procedures
- Help people to work from home
- Maintain two metre social distancing, where possible
- Where people cannot be two metres apart, manage transmission risk
On 9 September 2020, as part of an attempt to simplify the COVID-19 Secure guidelines, the five steps to working safely were withdrawn by the government. However, since the matters covered by the five steps to working safely are still dealt with in the COVID-19 Secure guidelines for each workplace setting (see Application of COVID-19 Secure guidelines in specific workplace settings), their withdrawal does not significantly affect an employer’s obligations under the guidelines.
However, between 9 and 11 September 2020, a set of priority actions to protect staff and customers were added to each of the workplace specific COVID-19 Secure guidelines.
The priority actions contain the following list of seven steps which are consistent across all workplace settings:
- Complete a COVID-19 risk assessment. Share it with staff.
- Clean more often. Increase how often surfaces are cleaned, especially those that are being touched a lot. Ask staff and customers to use hand sanitiser and wash their hands frequently.
- Ask customers to wear face coverings in any indoor space or where required to do so by law. That is especially important if customers are likely to be around people they do not normally meet.
- Make sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that customers can follow.
- Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
- Take part in NHS test and trace by keeping a record of all customers for 21 days. From 18 September, this will be enforced in law (see Keeping records of staff and customers).
- Turn people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be isolating.
As well as these seven steps, the COVID-19 Secure guidelines for each workplace setting contain a further set of priority actions which are tailored specifically to the relevant workplace.
These are different in each set of guidelines but cover matters such as encouraging the use of contactless payments, reducing crowding, limiting the handling of goods or crockery and cutlery, and lowering background noise.
Typical Challenges Employers Might Face When Reopening Offices
With many staff either being furloughed or working remotely for so long, informing them they are required to return to work may present some challenges, such as:
- Staff either being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
- Childcare issues and staff claims they can’t return to work until nurseries reopen.
- Staff simply being extremely anxious about the risk posed by COVID-19 and frightened of a return to the office.
- Staff expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance.
The appropriate approach will depend on the reasons set out by each employee, but employers will need to proceed with caution to avoid the risk of possible claims at the Employment Tribunal.
Employers should be prepared to be flexible as they put measures in place given the likelihood that COVID-19 will remain a risk for the foreseeable future and resurgence in infections may result in them facing further lockdowns. It is important also to remember that:
- The COVID-19 pandemic advice from the UK Government and the Scottish Administration is continually changing.
- The published government / administration guidance does not, except where explicitly stated otherwise, supersede existing employment legislation so it is important to seek appropriate legal advice, where necessary.
- It is unclear how long the current level of restrictions might last. The fact the Furlough Scheme comes to an end on 31 October presents further challenges for employers and individuals alike.
- The longer-term implications of the COVID-19 pandemic are yet unknown, but it is clear that they will be felt for months, and possibly years to come.
Support for Employers
The COVID-19 pandemic an emerging from lockdown continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.