12 November 2020
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Looking after employees and their mental health during COVID-19

COVID-19 has turned a significant percentage of office workers into "remote workers" almost overnight. Many studies have shown the positive impact of home working but that may not be the reality here, in the face of an urgent crisis, where home working is applied wholesale to people who have not worked remotely previously and there is no short-term end in sight. 

It is also not simply working from home on an employee or employer's terms as might had been the case pre-pandemic. For example, home working may now mean working from home whilst also looking after children of school age or working from home with other householders who are doing the same; working from home alone; and/or working from home with far too much to do or too little to keep the employee occupied. Normal routines will likely no longer exist and employees may find that the boundaries between work life and home life are almost non-existent (giving a whole new meaning to the challenges of achieving "work-life balance"). 

The reality is that these factors, together with the feelings of isolation, and anxiety and distractions because of what is happening globally, are likely to have a negative impact on employees' mental health and productivity. 

We consider below some of the legal and practical challenges faced by employers and the steps that they should be taking to try to ensure that they discharge their duties to employees who are working from home. These include taking steps to protect the mental health of the workforce by supporting and assisting employees. Getting it right is important from a legal risk point of view, but it is also a key part of managing employee relations. 

Health & safety  

Employers have a duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employees and self-employed people also have important responsibilities too but those responsibilities are outside of the scope of this note. 

In practice, this means employers making sure that their employees and others who are affected by their business in some way are protected from anything that may cause harm. They must do whatever is reasonably practicable to achieve this. 

The employer's duty extends to protecting both the physical and mental health of the employee. In the circumstances, it will not be reasonably practicable to take some of the usual steps which might be associated with limiting the risks to an employee's mental health. However, it will still be possible for an employer to assess the risks, albeit remotely, and take practical steps to help the employee manage the situation. 

Employment issues 

Perhaps the most immediate concern is supporting those employees with a pre-existing mental health condition, but with the ongoing pandemic comes the real risk that more and more employees will begin to experience mental health issues. Some of those employees may well have a mental health condition that constitutes a disability and will be protected by the Equality Act 2010. In those circumstances where the employee is placed at a substantial disadvantage because of home/remote working arrangements (or a requirement to continue to attend the workplace) the employer will have a duty to make reasonable adjustments. Quite what is reasonable in the current climate is likely to pose an immense challenge for some employers not least because the usual routes to identifying adjustments including Occupational Health referrals, from which the employer may then determine what is reasonable may be closed. 

What can employers do? 

Communicate - Employees should be kept up-to-date regularly on how the developing situation is impacting the business, the impact on them, and the steps the employer is taking to manage the situation. The communications should be as consistent, honest and as clear as possible. Ideally, there would be: a central "hub" where information and tips on wellbeing and staying connecting are stored; a point of contact whom employees can approach if they have any concerns; and centralised communications of the type envisaged in this paragraph. 

One size does not fit all - What works for one employee will not necessarily work for others. This means conducting a form of risk assessment in order to identify individual needs. Given the current circumstances employers may not be able to do a full and wide - ranging one, and the risk assessment can be as straightforward as line-managers or supervisors speaking with employees about how they are feeling, what their needs are and what the employer can do to help. Employers should listen to their employees, they are usually the experts at identifying what they need. Employers might not be able to give them everything they need but they can listen and try to take reasonably practicable steps to manage the risks. If employees cannot identify the adjustments that they need then it will likely be a case of trying certain adjustments and seeing which works. Employees should be heavily involved in this process. 

Identify those who are most at risk - Some employees will find it more difficult to work remotely than others. These include employees who are new to the business; those employees who are not used to working from home; employees who used to have a thriving social life with their colleagues and otherwise; and employees who live alone.  

Special care should be taken to consider and address as far as is reasonably practicable the concerns of this category of employees. 

Aside from legal compliance, the benefits of helping to maintain good mental health and wellbeing amongst employees will likely include sustained productivity, motivation and creativity. 

Copyright © The Impact Lawyers. All rights reserved. This information or any part of it may not be copied or disseminated in any way or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of The Impact Lawyers. The opinions expressed in this article are those of the authors and do not necessarily reflect the positions or policies of The Impact Lawyers.
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