While some people continue to enjoy working from home, this is not the case for everyone and negative impacts continue to take a toll on some employees as the shift to hybrid and remote working has continued to remain in place for many workers since the COVID 19 pandemic. Indeed, remote and hybrid working is likely to remain the norm in many sectors as we head into turbulent economic times as many employers have permanently downsized their office space and wish to take advantage of the cost benefit of workers working from home. There appears to be no going back for employees as well, many of whom relish the freedom and autonomy of being free to be located where ever they chose.
‘Employers are unsure of their responsibilities for mental health and how to deal with performance issues, when the boundary between home and work has become blurred,’ says Zoe Lagadec, Principal of Mulberry’s Employment Law Solicitors ‘they want to know how best to support their employees’ wellbeing while keeping the business on track in difficult times. This includes knowing what questions you can ask, how to address mental health issues, and how to be fair in disciplinary procedures.’
Potential problems arising from homeworking
Homeworking brings a different set of pressures to those in the workplace; a lack of boundaries between home and work, and difficulties in switching off. It can put a strain on relationships, particularly for those without a separate room to work in, or who are having to cope with caring responsibilities, education, or special needs.
For some employees, the buzz of the workplace and the structure of the working day in the office may provide a relief from loneliness, addiction, old trauma, or an underlying mental health problem. For others, concerns around the pandemic or job security may have caused anxiety or depression.
Employer responsibilities for employees’ mental health
Employers need to do what is ‘reasonably practicable’ to ensure their employees’ health and safety. This includes mental health as well as physical health, which means a responsibility exists if your employees are in the workplace, on site or working from home.
Look out for potential disabilities
You need to be alert to the possibility that an employee’s mental health condition could be a disability, which means the employee is protected under the Equality Act 2010. Even if the employee is not aware that they could have a disability, you would be expected to pick up on signs and respond appropriately.
A mental health condition, such as anxiety or depression, can be a disability if it has a substantial adverse impact on the employee’s ability to carry out day-to-day activities and that impact has lasted, or is likely to last, for 12 months.
If the employee has an alcohol or other addiction, this is not regarded as a disability under the Equality Act 2010, per se. However, it can be hard to disentangle addiction from other mental health problems that may pre-date or be caused by the addiction. We can advise you on dealing with this sensitive situation.
How to approach an employee
If you suspect that an employee may be struggling, you may be concerned about employee privacy or saying the wrong thing. Using open questions such as ‘how are you finding working from home?’ can help get the ball rolling. Using a video call will help ensure that you do not miss essential non-verbal signs. Providing these conversations are handled sensitively, it is appropriate to broach the subject.
If the employee appears to be having problems, then it may be advisable to involve an occupational health specialist to assess the employee. This can be done remotely.
Supporting employees’ wellbeing
If it is found that the employee has a disability, you may need to make reasonable adjustments for them. For instance, it may be appropriate to increase supervision, or adjust the employee’s workload or working hours.
There is a range of ways in which managers can support staff wellbeing at home, such as regular, scheduled individual catch ups; encouraging employees to take regular breaks; regular team socials by video call; and encouraging employees to switch off at the end of the day.
Performance management and disciplinary matters
As part of any fair process in dealing with poor performance or an accusation of misconduct, the employee should have the opportunity to put their side of the story and offer any mitigation.
If the effects of homeworking during the pandemic, or the particular pressures of the pandemic, have been a factor then this needs to be taken into account in the employer’s response. You may need to be more lenient, particularly if the employee had a good record until the first lockdown.
A disciplinary meeting can sometimes be the first time that an employee mentions a mental health problem. If so, you may need to pause the process to find out if the employee has a disability, the effects of which might be relevant. Missing clues at this stage could risk a claim for disability discrimination later.
Data protection and health information
Remember that information about an employee’s health is sensitive personal data, and so needs to be handled in accordance with privacy regulations.
How we can help
Good communication and proactive management are key to supporting employee wellbeing, but this is a sensitive area and you should seek support from an employment lawyer to reduce the risk of a grievance or employment tribunal claim.
We can advise you at all stages, including on whether an employee is likely to have a disability, what additional support may be required, and on your obligations under data protection law in relation to health information.
Please contact Zoe on firstname.lastname@example.org. Mulberry’s has offices in Brighton, East Sussex and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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