Staff wellbeing during the pandemic and legal considerations for employers19/10/20
As a result of the significant rise in COVID-19 infection rates recently and the imposition of local restrictions, employers are reassessing their workplace staffing requirements. Whilst employers had been welcoming employees back to the workplace, from September the emphasis has been, once again, on home working.
From 22 September 2020, the guidance regarding home working changed to state that:
“office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work. The risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.”
For office workers, it is interesting to note the use of the phrase “work effectively from home” in the new guidance. There is a clear emphasis on homeworking moving forward but an acknowledgement, perhaps, that a strict rule mandating homeworking for all staff is not practicable, for example when people are also caring for dependants, or do not have an effective home working environment. In addition, the guidance refers to an employee’s “normal duties” and whether these can be carried out from home. There is no general obligation on employers to adjust duties and job descriptions to enable homeworking, although many employers will have looked at redeployment and temporary changes to roles and duties in respect of high risk members of staff.
Employers have, to date, tended to focus on the physical safety of staff and the risk of contracting COVID-19 in carrying out risk assessments but, as the pandemic continues and new restrictions are imposed, the impact on the population’s mental health and wellbeing is being discussed. Employers must be clear that their statutory and common law duty in respect of health and safety extends to mental health as well as physical health.
We recommend that any risk assessment of the home working setting includes consideration of mental health and wellbeing. The detrimental impact on mental health of working in isolation or trying to work whilst caring for others in a home setting is now well documented. At the beginning of the pandemic, many employers had been promoting support networks and, with the winter approaching, there are questions being asked about whether that is enough.
The mental health of frontline workers is something which is at the forefront of many employers' minds moving into the second wave of the pandemic. We are aware that sickness absence levels are increasing and there is concern regarding mental health and potential psychiatric injury such as post-traumatic stress disorder (PTSD) for those who have been treating COVID-19 patients.
Generally, health and safety legislation does not create individual rights for employees to enforce against employers directly. It is the Health and Safety Executive which takes enforcement action against employers. This could result in criminal sanctions where there is a failure to comply with the statutory duty of care, including a failure in respect of mental health.
However, a failure to comply with the common law duty of care, in the most extreme of cases, could result in a civil claim for personal injury by an employee against an employer. Whether an individual can successfully bring a claim against an employer for mental ill health resulting in psychiatric injury will depend on a range of factors such as causation, whether the injury to the individual was foreseeable by the employer, the extent of the risk of injury, the seriousness of the consequences and the cost, practicability and effectiveness of measures taken by an employer. The particular breach of the employer’s duty of care must have caused the injury in order for the employer to be liable but need not be the entire cause and it is sufficient to show that the employer’s breach made a material contribution to the injury. Read our article for further information on employer liability for psychiatric injury including detail on foreseeability, causation and apportionment of damages.
Employers are not obliged to remove all risk in the workplace but they are required to ensure the health and wellbeing of staff so far as is reasonably practicable. To this extent, training managers to be aware of the signs of mental ill-health and to regularly check on those who are displaying signs of mental ill-health is strongly recommended. One element of employer liability is foreseeability which is concerned with what the employer knew (or ought reasonably to have known) and whilst the pandemic is causing a great deal of anxiety generally, this may manifest itself in behaviour at work which should not be ignored. Such signs might include drops in performance, a change in an employee’s usual behaviour, working long hours or increased absence. Where these signs are present, it is essential that an employer reacts straight away to establish the cause and whether there are any measures that can be taken to alleviate pressure on an employee such as counselling services, staff support networks, reduced hours and adjustments to roles.
Ensuring that managers are trained and supported to encourage and engage in open dialogue and to recognise mental health issues will be key both for those employees who continue to attend the workplace and those who are working from home. Employers should ensure they keep in regular contact with employees who are homeworking, so that the employee continues to feel part of the team, and making contact with employees to choose a preferred time and method of communication is important.
How can Capsticks help?
Moving into winter, staff wellbeing will be a crucial consideration for employers. The recent changes could be viewed as a trigger for employers to refresh their efforts in respect of wellbeing. Programmes to encourage physical health and wellbeing during breaks or lunch times amongst support groups may be launched and networks or buddy systems re-established. Certainly, as part of any homeworking or workplace risk assessment, we suggest that opinions are sought regarding what employees feel would help them over the current months to protect their mental wellbeing.
We are advising a number of organisations on the legal considerations around workforce pressure as we move into the second wave of the pandemic. If you would like further advice regarding mental health and wellbeing in relation to employer liability, please get in touch.