The Scottish Government recently published its updated COVID-19 Strategic Framework (Updated Framework), which considers the impact of a move to beyond level 0 on a number of key stakeholders, including Scottish employers in all sectors.
For many, since March 2020, working from home has been the “new normal” and indeed, where possible, has been mandated by the Scottish Government as part of the public health measures to curb the spread of COVID-19. However, as both the easing of restrictions and vaccination rollout continues, employers have been cautiously awaiting further guidance on whether working from home will continue to be encouraged on moving to level 0 and beyond.
From the Updated Framework, it is clear that the Scottish Government will continue to support homeworking where possible and that it will continue to play a vital role in minimising the spread of COVID-19. Potentially changing the landscape of how us lawyers, not to mention our clients, will work in the future, in the Updated Framework the Government has said it will give employers “strong encouragement” to support working from home some of the time. However, it has also recognised that employers and businesses will be best placed to shape how hybrid working will work for them, and has encouraged employers to engage in early consultation with employees and unions to ensure their working practices meet the needs of their staff.
While the Scottish Government’s guidance will be welcomed by some employers, it won’t be welcomed by all. It also raises further questions. Many employers will now be asking themselves to what extent the “strong encouragement” stated by the Government should affect their working arrangements moving forward. Employment law is reserved to the UK. This means the Scottish Government can give its recommendation to businesses, but beyond that it is very restricted in both the financial and legal changes it can make to support homeworking. It is therefore unlikely that any compulsory changes will come into effect in this regard with the country beyond level 0.
Employee wellbeing is something that should appear on every employer’s priority list, and this has been further catapulted into the spotlight since the pandemic. Whilst the Scottish Government has made it clear that it will continue to encourage working from home primarily for public health reasons, the Updated Framework also touches on the benefits that homeworking can have on employee wellbeing more generally. In light of this, employers should have a strong handle on employee welfare and a good understanding of how this has been impacted by remote working, whether positively or negatively. As we cautiously take steps back to the pre-pandemic world, employers should gauge the appetite and preferences of their employees as to returning to the workplace, to ensure that welfare needs are taken into account when planning for the future. This, of course, needs to be balanced with business needs and feasibility.
On the flipside, where employers are intending to roll out remote or hybrid working models, it is important that mechanisms are in place to ensure that employee wellbeing remains a focus for those who are working from home. The approach used for promoting employee welfare in the office may not be appropriate for those employees who are working from home, and employers may find themselves having to get creative to make sure everyone is covered and employee engagement remains high.
Return to office policy and plans
Planning a return to work policy, however that may look, will raise a lot of questions and potential uncertainty for employers and employees alike. Employers should consider how the Scottish Government’s measures, such as Track and Trace or other health and safety requirements, will impact on, and be incorporated into, their return to work plan. As offices begin to fill up again, employers should be prepared for members of the workforce having to self-isolate if someone in the building has contracted the virus. These eventualities will need to be carefully thought through in advance, and employers should have a contingency plan in place should a large number of their workforce be forced to self-isolate or revert to homeworking full time.
Where a return to the office is being proposed, whether on a full-time or part-time basis, employers should plan well in advance and communicate their plans to employees at the earliest opportunity, ensuring regular updates are provided. This will avoid any surprises and allow questions or concerns which employees may raise to be addressed and arrangements put in place where required.
Although there is no doubt that the upcoming months, and indeed years, will be challenging for employers, the circumstances also present a unique opportunity to reconsider and reinvent how and from where their workforce operates.
Claire Nisbet, associate, Dentons UK, Ireland & Middle East LLP
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