COVID-19: Employees’ mental health – Legal risks and issues

There is no denying that the challenges presented by the COVID-19 outbreak over the past year have had a huge impact on mental health and wellbeing.

For many, the pandemic has created new concerns, such as disruption to routine, different ways of working, job losses, loneliness and isolation.

In turn, this has had an effect on business profit, with a recent report stating that staff absences due to mental health reasons cost businesses £14bn in 2020. However, in more positive news, a recent survey by Westfield Health found that 81% of businesses are addressing this issue and focussing their efforts more on supporting the mental and physical health of staff.

In our recent webinar we covered the legal considerations for employers when considering how to address employees’ mental health during this difficult time, alongside practical guidance from our webinar partners West Kent Mind.

This article explores in more depth some of the issues covered in the webinar and highlights employers’ legal obligations around supporting employees’ mental health. We also provide a summary of practical tips and actions you may wish to consider.

Health and safety

Why do employers need to be aware of potential mental health issues?

Under existing health and safety law you legally have to:

• Take reasonable care for the health and safety of your employees. The key here is to remember that this includes both physical and mental injuries.
• Maintain mutual trust and confidence. This means that you should not, without reasonable and proper cause, behave in a manner calculated or likely to destroy, or seriously damage the relationship of trust and confidence with an employee. This includes dealing with complaints fairly and seriously so, if issues of mental health are raised, you should address them appropriately.

Employers also have to follow applicable legislation:

• The Health and Safety at Work Act 1974 (HSWA) imposes a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work. This will include those suffering with mental health issues such as stress at work.
• The Management of Health and Safety at work Regulations 1999 (MHSW Regulations).

This legislation highlights your responsibilities as an employer, including:

• Carrying out regular risk assessments
• Ensuring you have an up to date health and safety policy
• Providing training around these areas

Risk assessments

Should I publish my organisation’s risk assessment?

The law already says that significant findings from risk assessments must be written down if you have more than five staff.

Current guidance recommends that you publish your COVID-19 risk assessment on your website. All employers with over 50 workers are expected to do this.

How do I carry out a satisfactory risk assessment?

The Health and Safety Executive (HSE) provides general guidance on how to do a risk assessment. This needs to be adapted for COVID-19 using the appropriate workplace guidance for your particular environment and sector.

The HSE recommends taking the following five steps:

1. Identify the hazards in your workplace
2. Decide who might be harmed by those hazards and how
3. Evaluate the risks and decide on measures you can implement to minimise the risks
4. Record your findings and implement them
5. Review your risk assessment and update it as necessary

At its most effective, full involvement of employees helps creates a positive culture, with employer/employee relationships based on collaboration, trust and joint problem solving.

It should be standard practice for your employees to be involved in assessing workplace risks and the development and review of workplace health and safety policies, in partnership with you as the employer.

A risk assessment should not be about creating huge amounts of paperwork, but rather about identifying sensible measures to control the risks in your workplace.

Your risk assessment should help you decide whether you have done everything you need to, to ensure a safe working environment.

Support available

The HSE has guidance for business on how to manage risk and risk assessment at work along with specific advice to help control the risk of coronavirus in workplaces, which you may find useful to refer to.

Should I consult my employees about the health and safety aspects of reopening the workplace?

Yes. If you recognise a trade union, you should consult with your union safety representatives.

Where workers are not already represented by union representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety. This particularly relates to the introduction of new COVID-related measures that could substantially affect their health and safety.

It is important to note that it is a criminal offence not to comply, although this is not the type of offence that the HSE has actively prosecuted in the past.

Also note that employees do not themselves have any kind of civil remedy for failing to be consulted over health and safety matters.

Support available

The HSE has produced guidance about this; ‘consulting employees on health and safety’ and ‘involving your workforce in health and safety.’

Is there anything that can help my organisation comply with legal requirements?

The law requires you to assess the risks of work-related stress on employees. You are also required to put steps in place to tackle these.

Support available

A useful resource is the HSE’s ‘Talking Toolkit’ to support managers in managing stress at work, although this should not be used in isolation.

In the toolkit, the HSE set out the key areas of work which, if not properly managed, can lead to work-related stress.

• Demands: level of workload
• Control: the control someone has over their own work
• Support: That offered by the employer
• Relationships: The working environment
• Role: What is the employee’s role within the organisation
• Change: Management of organisational change, how is this communicated

This was covered in more detail in the webinar by speaker Ceri Hodgkiss from West Kent Mind.

What claims might an employee bring?

With the increase in mental health-related issues, comes the inevitably higher risk of employees bringing claims against their employers.

It is important that you are aware of these so you can take the appropriate steps to address any issues before they reach the point of legal action.

Keys claims

• Unfair dismissal: In this instance, there is a need for a fair reason for dismissal and a fair process to be followed. This would most likely follow sickness absence management. An employee would need to have two years’ continuous service to bring a claim and compensation is limited to the lower of the statutory cap (currently £88,519, or 52 weeks’ gross salary).
• Automatically unfair dismissal: There are six specific health and safety-related reasons that it is illegal to dismiss people for. As an employer, if you do this it’s automatically considered to be unfair. This is an often-attractive option for employees as there is no need for two years’ service to bring a claim and compensation is uncapped.
• Disability discrimination: This could potentially become a big issue for employers as there is no requirement for two years’ continuous service to bring a claim. There is also the possibility of unlimited compensation being awarded.
• Harassment: This could be brought under the Protection from Harassment Act 1997 which prohibits a “course of conduct which amounts to harassment” and which that person knows or ought to know amounts to harassment. This type of claim may be attractive as a reasonable steps defence does not apply and there is a longer period to bring a claim – six years from the act complained of, rather than the three year period for personal injury claims or three months for discrimination claims (subject to Acas conciliation extensions).

Legal guidance for employers

It is important to note that as an employer you are vicariously liable for the acts of employees carried out in the course of their employment.

This is regardless of whether you were aware of the acts or not. It is also irrelevant of whether such acts were approved or not.

For a disability discrimination claim, you may be able to raise a ‘reasonable steps’ defence if you can prove you took all reasonable steps to prevent the discrimination occurring before the act took place. This is a difficult defence to run and must be backed by strong evidence.

Employees can also bring claims against individuals who can be held personally liable for compensation.

Summary – guidance and advice

Here are some simple steps you may wish to consider implementing if you don’t already have these in place.

• Employees may find it difficult to reach out when they are trying to deal with mental health issues, so establishing a line of communication can be a very important. If you do not already have it, think about setting up an email address for staff to anonymously contact your HR or senior management team to discuss any issues. If that person feels comfortable enough, they may then reveal their identity and enable you to further support them.
• Having regular mental health awareness days can assist in promoting a healthy workplace culture of discussing personal wellbeing. This can help employees dealing with mental health issues feel more comfortable in seeking the relevant support.
• New or refresher training can help staff identify what signs to look for in colleagues dealing with mental health issues.
• It is also recommended you provide training on how to support affected employees. The sooner you are able to identify issues at an early stage helps to resolve them before they escalate.
• Implementing a wellbeing policy will cement and confirm your organisation’s commitment to mental health and wellbeing. This also helps to reassure employees that the company has a genuine interest in supporting them, which generally encourages more openness and progress towards improved wellbeing within the whole organisation.
• Communication is key. Ensure employees are aware of the support that is available, raise awareness of common mental health issues within the workplace, support at all levels for managers and supervisors as well as all other employees.

Mental health and wellbeing – further support for employers

A recording of our webinar ‘Supporting employees’ mental health: Legal considerations and practical application’ and the accompanying presentations is available to view.

You may find it helpful to refer to our recent article outlining the potential legal risks that can arise from businesses not correctly addressing their employees’ wellbeing, with a focus on disability discrimination and health and safety issues.

If you require additional guidance on the issues covered in this article, take advantage of our free 30-minute consultation with Brachers’ Employment team.