Following amendments by the Welsh Assembly to The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 made 20 December 2021 many members have been concerned regarding the introduction of criminal offences designed to support coronavirus protections. Whilst there has been a lot of speculation there has been little hard facts upon which members can make decisions.
Is it an offence for employees to come to work?
Sort of. The issue in question is Section 18B, which states
“18B.—(1) In the circumstances referred to in paragraph (2), no person may leave the place where they are living, or remain away from that place, for the purposes of work or to provide voluntary or charitable services.
(2) The circumstances are that it is reasonably practicable for the person to work or to provide voluntary or charitable services from the place where they are living.
(3) For the purposes of this regulation, the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.”
The legislation is not straight forward but in effect makes it a requirement to work from home where it is reasonably practicable to do so. Section 42A makes it an offence from 20 December 2021 not to work from home without a reasonable excuse
The act does not require workers to work from home. If it is not practicable for them to do so, i.e. their job requires the use of specialised tooling, or there is a reasonable requirement for their attendance in the workplace then staff can still travel and can still be required to attend work.
What the act does not do is define what a reasonable excuse would be. It is likely that where work cannot be undertaken from home i.e. vehicle repair, valeting etc… that this should be sufficient.
What is the penalty?
The Regulations allow for a fixed penalty to be given for a first offence of £60. This rises to £120 for a second offence, £240 for a third, £480 for a fourth, £960 for a fifth and £1,920 for a sixth and any subsequent offences
If the matter is taken to court the offence is currently punishable by an unlimited fine and as such the court will have a wide discretion as to how much to fine.
The offence is also subject to arrest without warrant.
Can The business be fined for requiring people to work from the business?
Again, sort of. The Regulations have created a series of ‘Business offences’ at Section 42, but at time of writing, the offences are not actually requiring employees to come into the workplace but failing to close businesses when required to due to the alert level or comply with improvement notices.
Provided members comply with improvement notices, the current regulations are unlikely to affect RMI members unless or until Wales enters Alert Level 4
What is the penalty?
As reported, the ultimate penalty is a £10,000 fine. However this is only for the Fourth and all subsequent offences. The Regulations allow for a fixed penalty to be given for a first offence of £1,000. This rises to £2,000 for a second offence, £4,000 for a third, and £10,000 for a fourth and any subsequent offences
If the matter is taken to court the offence is currently punishable by an unlimited fine and as such the court will have a wide discretion as to how much to fine.
In Conclusion
As previously stated, the act does not require workers to work from home, neither does it penalise employers for requiring employees to attend work. Employees are required to work from home only where reasonably practicable. We would advise that members undertake an audit of all the roles within the workplace in order to assess which can be undertaken from home and which cannot. Where roles can be undertaken from home members should facilitate this as it will not only comply with the regulations but also assist with social distancing and other measure that should now be taken within the workplace to reduce the spread of Coronavirus.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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Links
https://www.legislation.gov.uk/wsi/2020/1609/contents/made
