Katherine Metcalfe

The First Minister Nicola Sturgeon announced on Tuesday that Scotland will move “beyond level 0”, lifting most of the remaining legally imposed Covid-19 restrictions, including physical distancing, 

However, mitigations such as mandatory face coverings will remain in place for the foreseeable future (and enshrined in law) – in contrast to England where the onus has shifted to “personal responsibility” and where face masks will instead be a matter of individual choice. 

Unsurprisingly, unions and employers have been seeking clarity around mask-wearing and social distancing in light of the UK government advice to “exercise judgment” in how we interact with each other.

But what does that mean for employers who have a legal duty to keep employees safe? A lot of our clients strive to have a universal health and safety policy across the UK, but as Covid-19 restrictions ease in different parts of the UK at different speeds, that’s not going to be possible.

Carrying out risk assessments is key to employers protecting staff as best they can. Businesses must determine the risk of Covid transmission within their workplace and identify the control measures they need to have in place to minimise potential spread.

Risk assessment should be reviewed frequently, especially when there are changes to government guidance or the law on managing Covid, in order to determine whether the measures in place are still required. 

Many businesses are looking at whether they can roll back some measures, for example, to increase occupancy levels within their offices, but they are weighing that up against other considerations. 

Key issues include the Scottish government’s continuing advice to work from home where possible (although that stance appears to be softening), and providing reassurance to employees who may be nervous about a return to the workplace. 

In a health and safety context, generally speaking, employees don’t choose which health and safety measures they do and don’t comply with. It is the employer’s responsibility to carry out a risk assessment, to identify the control measures that are appropriate for their workplace, and then to put those in place and to enforce them.

It’s the expectation that employees will follow those control measures so there isn’t really a place for personal responsibility in the sense of choosing which workplace rules to comply with. 

Where I think it may have a useful role is for employees considering what they do in their own time. If an employee is going on a work trip, or they’re coming to the office, they might, for example, think about whether they should wear a mask on a trip to the cinema, or a trip out to a restaurant, to minimise the risk of bringing Covid back into the workplace.

I expect that as people become comfortable with returning to the workplace, and as social distancing measures are phased out, that Covid will become a bit more like any other health and safety risk that’s being managed by an employer.

Katherine Metcalfe is a legal director at Pinsent Masons