New fines for Welsh businesses who don’t enable homeworking

On 20 December 2021, the Welsh Government introduced new measures under The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 22) Regulations 2021.

Previous government mandates instructed employees to work from home where reasonably practicable. However, from 20 December 2021, 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. Any employee found to be in breach of these work from home rules without a reasonable excuse, risk a personal fine of £60. This doubles for each repeat offence to a maximum of £1,920 for the 6th offence, after which further sanctions may be given.

Similarly, employers risk fines for business-related offences (e.g. failure to enable an employee to work from home, where it is reasonably practicable for them to do so) starting from a fixed penalty notice of £1000, which then increases to a maximum of £10,000 for the 4th offence. Employers also risk being issued with improvement and/or closure notices for repeated breaches to regulations. As such, its imperative employers follow the guidance and take steps to support a return to homeworking where feasible.   

Whilst both the employer and employee can receive fines for non-compliance, it is likely that an employee who is presented with a £60 fine for going to work, when required by their employer, is going to pass that fine on to their employer. As such, employers may need to factor this in as an additional expense. The £60 will reduce to £30 if paid within 14 days.

In some settings, it will not be possible to work from home. This may be because the nature of the role does not allow for remote working (e.g. those providing personal care, shopworkers etc.). We have created a new letter which these employees can pass on to regulatory bodies (e.g. the police), in the event they are stopped and/or questioned on why they are not working from home. The letter confirms the employee’s eligibility to continue working from the workplace and outlines the reasons why it is not reasonably practicable for them to work remotely.

Whilst there is no fixed guidance on who can “reasonably practicably” work from home in Wales, employers may wish to consider guidance from the Scottish Government whereby the expectation is that anyone who was able to work from home in March 2020, should do so again, with exceptions for those who do not have the facilities to work from home (e.g. due to poor internet connection) or those whose physical and/or mental health would be negatively impacted. Guidance from the Welsh Government confirms employers should be as flexible as possible and make adjustments to ensure staff are able to work from home wherever possible. This may include issuing staff with laptops or mobile phones and facilitating communication with all.

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