This article was updated on 28 September to reflect revised government guidance.

The government response to the rapid spread of COVID-19 has been evolving rapidly in order to make adequate provisions for businesses that have continued to trade in the current crisis. In order to ensure regulatory compliance it is important for businesses in Scotland to be aware of the Scottish Government guidance, the Coronavirus Act 2020, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, and the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020.

Regulatory compliance

In Scotland, while the Scottish Government guidance is not legally binding, the 2020 Regulations provide legal weight to the government’s requirement as to the premises which may or may not remain open (and, for some premises, the times during which they may remain open – see our update on opening hours for licensed premises).

For those businesses that remain open, health and safety considerations remain paramount. One of the most important practical considerations, and challenges, is that any business that remains open must take all reasonable measures (a) to ensure that a distance of one or two metres (depending on the type of premises) is maintained between any persons on the premises, (b) to ensure it only admits people to its premises in sufficiently small numbers in order to maintain that distance, and (c) to ensure that distance is maintained between any person waiting to enter its premises.

The Scottish Government has been clear that businesses that do not take all reasonable measures to enforce those rules could be fined or ultimately prosecuted.

Some retailers have faced criticism for prioritising sales over health and safety. There have been claims that employers are failing to give staff adequate guidance on how to stay safe at work, and that insufficient cleaning and hygiene products are being provided. These are not simply coronavirus-related issues; they are obvious health and safety issues that are a consequence of businesses failing to introduce and implement proper risk assessments as the pandemic develops. 

Retailers and businesses that remain open should consider the following questions and suggestions:

  • Have you considered what your COVID-19 emergency response arrangements are?
  • Communication is key. How will you communicate the emergency response arrangements, or wider updates and guidance about COVID-19 more generally, to staff?
  • What guidance have you given to staff about safeguarding their health (and the health of their colleagues) or the policies/procedures in place should an employee develop symptoms?
  • Supervision may be impacted. What are your ongoing management and supervision arrangements? Specifically, if senior management have to self-isolate, who takes over? Is there a ‘Plan B’?
  • The 2020 Regulations make clear that social distancing measures must be implemented. This is mandatory - not an aspiration. Customers need to queue in an orderly fashion (respecting social distancing), employees may need to work in defined sub-teams, and you may wish to stagger staff break times in order that large groups of employees do not gather together.
  • Do employees need personal protective equipment?
  • Do not forget about delivery drivers. Although there has been a temporary relaxation of the rules for driver hours, drivers must still have access to welfare facilities (such as reasonable access to toilets and handwashing facilities) and you will want to consider how they can make deliveries while maintaining social distancing.

Of significant relevance to most employers is the fact that many employees are now working from home. As an employer, you have the same health and safety responsibilities for home workers as for any other workers.

Where employees are to work from home, consider the following:

  • Keep in touch.
  • Do you know what activities they will be carrying out?
  • Can those activities be safely carried out at home?
  • Has a workplace risk assessment been carried out (given the speed at which many businesses moved to working from home, this is unlikely to have been a priority when large numbers of staff transitioned to home working, but employers should not lose sight of this over the coming weeks and months).

Can I be prosecuted – what is the Health and Safety Executive's approach?

The Health and Safety Executive (HSE) has made clear that, notwithstanding the challenging circumstances business face, responsibility for compliance with the 1974 Act and associated legal requirements remains with duty holders. HSE is not immune to the challenges other organisations are facing, however it has said it will endeavour to continue its regulatory oversight, having regard to available regulatory capacity.

HSE has indicated that its regulatory approach will be flexible and proportionate in taking account of the risks and challenges arising from the pandemic. It is instructive to consider HSE’s recent open letter (21 April) to the food industry: “Following an investigation HSE cannot give a guarantee that, regardless of the circumstances, we would not prosecute, or take one of the other enforcement actions open to us…Employers that can demonstrate effective control of risks with the appropriate combination of good working practices, engineering control and PPE are not likely to face enforcement action”.

The response to COVID-19 is challenging where business are allowed to continue trading, however those businesses need to remain vigilant to ensure they are complying with their regulatory requirements, health and safety obligations and social distancing guidance. The HSE recently published a helpful guide to social distancing for employers whose business remain open.

For further information on this topic, read our guidance for employers and our articleproviding detail on furloughing and the Coronavirus Job Retention Scheme and the new Job Support Scheme or contact Kevin Clancy, Gordon Downie, or your usual Shepherd and Wedderburn contact.

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