Date: 27/03/2020 | COVID-19, Healthcare, Commercial Property, Corporate & Commercial, Employment & HR, Dispute Resolution, Energy & Natural Resources, Environment & Regulation, Planning, Residential Development, Infrastructure & Projects, Health & Safety, Construction, Business & Professional Services
The Act particularly affects the healthcare sector. If you operate within this sector in Scotland, we have published a separate article to address the provisions of the Act in relation to healthcare and it is available here. Some of the contents of the article below will also be relevant to the healthcare sector.
This article covers:
This article covers select contents of the Act (in the form that it first came into force).
Should you have any questions about these provisions or any other questions about how coronavirus is affecting the operation of your business, please contact your usual Davidson Chalmers Stewart LLP contact.
Emergency volunteering leave
The Act provides that a worker (a term in law which includes an employee but also extends wider) is entitled to be absent from work for a period of 2, 3 or 4 consecutive weeks in order to carry out emergency volunteering leave (“EVL”). They can take EVL only once within a 16 week period.
There are some notice requirements imposed on the worker before they can begin EVL. Namely that they must produce to their employer, not less than 3 working days before the start of their EVL, (1) an emergency volunteering certificate (setting out one of the above periods of leave); and (2) notifying their employer in writing of their intention to be on EVL for such a time period.
The emergency volunteering certificate in Scotland is issued either by the Scottish Ministers or a local authority. It is a document certifying that the worker has been approved by the issuing authority as an emergency volunteer in health or social care and will be acting as such during the dates and durations specified in the certificate.
The Act protects an employee and, to a lesser extent a worker (who is not an employee), on EVL.
During EVL, the employee is entitled to all the benefits of their employment as if they had not been absent (except for remuneration, which is dealt with separately in the Act). After the end of EVL, an employee has the right to return to their job on no less favourable terms than those that would have applied if the employee was not absent.
An employee is also protected from dismissal if the reason for the dismissal was that the employee took or sought to take EVL. If an employer dismisses in those circumstances, the dismissal will be automatically unfair and the employee will have the remedy of unfair dismissal against the employer.
Separately, a worker is protected from any detriments suffered as a result of taking EVL.
This part of the Act will not come into force until regulations are made stating that it is to come into force. This is different from most provisions of the Act, which come into force when the Act becomes an Act in the usual way (i.e. when it received Royal Assent, which was 25 March 2020).
Food supply chain information requests
Readers will be aware of the panic buying that is occurring in supermarkets. For clients involved in food supply chains (as comprehensively and densely defined in the Act), this part of the Act is particularly important reading. The Act makes provisions for organisations in or closely connected to a food supply chain to provide information about their activities in relation to the food supply chain to the Secretary of State (“SoS”) or, in certain circumstances, the Scottish Ministers (“SM”) upon request.
The SoS or SM may only make such information requests under this legislation in circumstances:
The second of these circumstances appears to suggest that the initial approach for information from the SoS or SM (or on their behalf) to those involved in the food supply chain will be informal and not under the powers set out in the Act. Clients operating in this sector should be aware that the SoS or SM will have a statutory power to request the information if it is not initially provided to them when requested informally.
This is a curious approach, given the urgency of all other parts of the Act, and the potential exposure of the industry by disclosing on a non-statutory basis. If clients are approached by the SoS or SM in relation to this matter, on an informal basis, consideration should be given to what information is being requested and what constraints are being placed on how that information will be used. There may be data protection implications of disclosure on an informal basis. If you require legal advice on this matter, please do let us know.
Information obtained under the provisions of the Act by the SoS or SM are subject to the restricted uses set out in the Act. The uses are those set out above in the first bullet point. In addition, there are provisions about personal data in relation to the disclosure of any information.
Failure to comply with these provisions of the Act or providing information that is false or misleading to a material extent would entitle the SoS or SM to impose a financial penalty on the organisation. The maximum amount of a fine is 1% of the organisation’s qualifying turnover (as defined in the Act).
This part of the Act will not come into force until regulations are made stating that it is to come into force. This is different from most of the provisions of the Act, which come into force when the Act becomes an Act in the usual way (i.e. when it received Royal Assent on 25 March 2020).
Statutory Sick Pay modifications
The Act provides for powers to alter the availability of statutory sick pay (SSP). It does so by allowing regulations to be made for payment of SSP to be funded, in advance as well as in arrears, by HMRC “to such extent and in such manner as may be prescribed” when an individual’s incapacity for work is related to the coronavirus. According to the government’s guidance of support for businesses (available here, and on which we have published a summary here), the high-level eligibility for the scheme is that:
The regulations may be backdated in relation to a day of incapacity of work that was on, or falls after, 13 March.
The regulations can state when an employee’s incapacity for work is “related” to coronavirus. That will determine who is an “eligible employee” for the purposes of the criteria above. For example, if B does not have symptoms of coronavirus but lives with A, who does, then the regulations are expected to provide that B is entitled to SSP. That is clearly what the government guidance (available here) envisages. Whilst B does not have symptoms of coronavirus, their incapacity for work would be related to it because they are taking the recommended steps of isolating to stop the virus spreading beyond the household of A and B.
Finally, there is a separate power for regulations to be made to disapply the usual rule that SSP is not payable for the first three “qualifying days” in circumstances where the employee’s incapacity for work is related to coronavirus. If introduced, that would mean an employee would be entitled to SSP from the first day of absence.
The procedure for an employer applying to HMRC for a refund of SSP will likely be set out in the regulations. A power is provided in the Act for this purpose.
Powers to introduce public health regulations
The Act gives powers to the Scottish Ministers ("SM") to make regulations related to the prevention, protection, controlling or provision of a public health response.
Examples are given of the types of provision that might be made in the regulations. A particularly broad one is imposing requirements on or in relation to persons, things or premises. It is exercisable in the event of or in response to a threat to public health, which is clearly the present situation with coronavirus. These can only be made where they are a proportionate means of achieving their intended objective.
The Act also allows for powers to impose a special restriction or requirement in circumstances where there is a serious and imminent threat to public health (as there is here). Those powers include a requirement that premises be closed or disinfected or decontaminated.
On Thursday 26 March 2020, at 7.15pm, the Scottish Ministers made regulations under this part of the Act that came into force immediately. They restrict the movements of people generally and make provisions for certain businesses/premises to close or restrict the way in which they operate (examples include restaurants, bars and pubs). If you are concerned about whether or not your business is entitled to remain open, or what restrictions it is under, please contact us. It appears to be competent that more than one set of regulations can be made under this part of the Act, so more regulations may follow.
Power to prohibit or restrict events or gatherings
The Act gives the Scottish Ministers (“SM”) power to issue directions to prohibit or restrict the holding of a specific, or generic type of, event or gathering in Scotland. Such a direction must be for the purpose of (1) protecting against, preventing, delaying or otherwise controlling the incidence or transmission or coronavirus or (2) facilitating the most appropriate deployment of medical or emergency personnel and resources.
The Act also gives SM power to issue directions to regulate the entry or departure from a specific, or generic type of, premises. It appears to be within the scope of the directions that premises can be directed to close.
Directions under this part of the Act can only be issued during a “public health response period”. That period starts when a declaration made by SM that coronavirus constitutes a serious and imminent threat to public health in Scotland and the powers in this part of the Act (i.e. the directions) will be an effective means of achieving the purposes (1) or (2) set out above.
The duration of the legislation
Clearly the powers created under this Act are unprecedented. One way that checks and balances on the powers are managed is to define the purposes for which the powers can be used. This note has set out those above (where applicable).
There are also reporting obligations imposed on the Secretary of State in respect of non-devolved aspects of the Act to report on the use of those provisions of the Act and also a six-monthly parliamentary review mechanism for the provisions of the Act that are limited to be temporary in nature (i.e. subject to the expiry period mentioned below).
Another manner this is achieved is by the powers being temporary in nature. For example:
Should you have any questions about the Coronavirus Act and how its provisions might affect you and your business, please do get in contact with us. We will continue to review regulations and directions made under it that apply to Scotland.
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