The physical symptoms of the novel COVID-19 virus are well publicised, but what steps should employers take to help protect employees’ mental health at this unprecedented time? 

Practical tips for employers when employees are working from home 

The recent advice relating to self-isolation, social distancing and working from home where possible may lead to (or exacerbate) mental health conditions such as anxiety and depression, some of which may qualify as disabilities for employment law purposes. In light of this, employers should consider what they can do to protect employees’ mental health. Practical tips they may wish to consider include:

• where possible, encourage communication about work matters via calls or video conferencing facilities, in addition to or in place of email or instant messaging;
• arrange regular team or departmental catch-up calls or video conference meetings so that you can check in with employees from both a work and wellbeing perspective. These catch-ups do not need to be completely work-focussed (for example a “virtual coffee morning” where staff can catch up on things other than work via a video call). This will be particularly important for those employees who live alone and may be socially isolated for a prolonged period;
• make it clear that, just because employees are working from home, they are not expected to be ‘on call’ 24 hours a day. Many employees will feel obliged to respond to or action emails that are received outside of normal working hours and this sense of obligation can increase feelings of stress and anxiety. Some companies are choosing to adopt an email footer stating “Our company supports agile working, so please don’t feel you need to respond to this email outside your normal working hours.”
• encourage employees to take regular breaks when working from home, as they would when they are in the office and to try to get some fresh air, exercise and natural sunlight if possible;
• put logistical or technological measures in place to ensure that employees have access to all of the resources required to fulfil their role from home. This will reduce any stress or anxiety caused by employees feeling as if they cannot carry out their role to the best of their ability when outside of the office (e.g. offer a fixed amount for employees to buy extra computer equipment or stationery);
• listen carefully to any feedback or suggestions employees may have to make working from home easier for them, particularly if you are aware that they have an existing physical or mental health condition, which could be impacted by COVID-19. This could be considered a reasonable adjustment under the Equality Act 2010; and
• if they are struggling, encourage employees to make use of any benefits included as part of private medical insurance or Employee Assistance Programmes (EAPs), such as counselling or therapy. Details of relevant benefits and available support should be easily accessible via an online noticeboard or intranet page and employees must be able to access this information remotely.

Legal risks arising from a failure to address mental health issues

Failure to properly address mental health issues can leave employers legally exposed in a number of ways.

• For example, mental health issues can constitute a disability under the Equality Act 2010 (if they have a substantial and long-term adverse effect on an individual’s ability to do normal daily activities. ‘Long-term’ means that the condition has lasted, or is likely to last, 12 months or more). If an employee is deemed “disabled” under this legal definition, then the employer will have a duty to make reasonable adjustments for the employee, and should avoid putting in place any widespread measures that directly or indirectly place someone with a disability at a disadvantage. Failure to do so could lead to disability discrimination claims.
• The difficulty with mental health issues is that they are often “invisible”. It is therefore vital that any obvious signs that someone has a mental health issue are not ignored, so that steps can be taken to mitigate the risk of any discrimination at an early stage and to make reasonable adjustments as required.
• Employers have a statutory duty to ensure the health and safety of their employees (under the Health and Safety at Work Act 1974), as well as a common law duty of care to take reasonable care for the safety of their employees. These duties will extend to work-related stress. Employers should therefore be actively ensuring the health and wellbeing of their employees even when they are working remotely. Failure to do so could give rise to a number of claims, including personal injury claims and breach of contract.