United Kingdom: Employee Mental Health in a COVID-19 world

Key takeaways

Mental health and well-being should already have been a consideration for employers. However COVID-19 has brought additional pressures of home working, home schooling, and the blurring of lines between home and work. These issues have highlighted the need for employers to review and refresh effective practices to protect employees’ mental health, which could in turn help to protect their business. Employers who invest in their employees’ mental health going forward will likely find that this results in enhanced engagement, loyalty and productivity among their workforce, as well as decreased levels of staff absence and employee turnover.

Mental health and well-being

While there is no legal definition of mental health, the World Health Organization (WHO) defines mental health as a “state of well-being in which an individual realises his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community.” It is important to recognise that (as with physical conditions) many individuals with mental health conditions are able to do all these things and live fully productive lives. Sometimes, however, mental health issues become more challenging to manage. Common mental health issues include low mood, stress, anxiety, and depression. Increasingly, the concept of “burn out,” a state of emotional, physical, and mental exhaustion caused by or contributed to by excessive and prolonged workplace stress is also (rightly) catching employers’ attention.

Why mental health matters: the business case

Even before the pandemic, the cost to employers was clear. In January 2020, a Deloitte survey estimated that poor mental health costs UK employers up to GBP 45 billion each year, representing a 16% rise from 2016. It also cited that for every GBP 1 spent by employers on mental health interventions, they get a GBP 5 return on investment from reduced absence, presentism, and turnover of staff. Figures published by the Health and Safety Executive in 2019 revealed that work-related stress, depression or anxiety make up the majority of reported causes of workplace illness in the UK, resulting in 12.8 million working days lost in 2018/19.

While the full long-term effects of the pandemic are still unclear, anecdotal evidence and more detailed research suggest a largely negative impact on mental health. A survey by Qualtrics reported that 44.4% of those now working from home say their mental health has declined since the start of the outbreak. Those working remotely for more than two weeks are 50% more likely to report their mental health declining due to “more chronic sadness” and “more fatigue.” Further, a survey by the Chartered Institute of Personnel and Development (CIPD) suggested that one in four employees were experiencing anxiety about a return to the office, with one in three being anxious about the daily commute in particular.

Prioritising workers’ mental health will be key for employers wishing to reduce absenteeism, increase productivity in the workplace, and retain the best talent.

The legal implications

Aside from the positive benefits of managing mental well-being, employers can also face challenges including legal risk; in particular, potential claims for personal injury, under health and safety legislation, or liability under the Equality Act.

Health and safety at work

Employers have a legal duty of care to protect their employees’ health, safety and welfare, including their mental health. Health and safety obligations extend beyond the traditional “physical” office to include employees working from home, whether on a permanent or temporary basis.

The Management of Health and Safety at Work Regulations 1999, impose the following duties on employers:

• carrying out risk assessments
• applying the “principles of prevention” (e.g., avoiding risks; developing a coherent prevention policy; giving appropriate instructions)
• providing information to employees about the risks to their health and safety

There is also an implied duty to provide a suitable working environment. Failure to comply with these health and safety obligations exposes employers to claims by employees for constructive dismissal (for breach of the implied duty of trust and confidence), personal injury claims arising out of a breach of duty of care, or a criminal offence under the Health and Safety at Work Act 1974 prosecuted by the Health & Safety Executive.

Employers’ COVID-19 risk assessments should ensure that they consider and address risks in respect of mental health and well-being as well as risks in relation to the virus itself.

Personal injury claims

Under the general law, employers are under a duty to exercise reasonable care in respect of their employees to prevent personal injury (including psychiatric) injury. If this duty is breached, employees can bring claims for negligence either in the civil courts or, where such injury is related to discrimination, it can also be pursued in the employment tribunal as part of an injury to feelings award. In order to succeed, the employee will have to show that injury was a reasonably foreseeable consequence of the breach, and, in practice, this is a high hurdle for the employee to overcome. Case law has established that unless the employer is aware of a particular vulnerability, it is entitled to assume that an employee can cope with the “normal pressures” of the job, even where the workload is relatively high and the work is stressful. However, once it is apparent that the employee is vulnerable, the employer will need to consider adjustments to working arrangements, for example, to the employee’s workload, hours or the nature of the work. Medical advice is key and it should go hand in hand with consultations with the employee to understand the specific issues and risks. Particular care is needed in cases where the stress relates to workplace conduct such as allegations of bullying, or to the distressing nature of the work.

Mental health under the Equality Act

Employees suffering from a mental health condition could be protected under the Equality Act 2010 if this constitutes a “disability.” This includes a mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This can cover a broad range of conditions and is likely to include depression and anxiety, where this has a long-term impact — meaning the impact is likely to last or has lasted for 12 months or more or for life. Case law has highlighted that relatively short-term low mood and anxiety caused by the medicalisation of work problems or life events (such as bereavement) will not always meet the definition of disability, so careful analysis on a case-by-case basis is required. In practice, however, employers should proceed with caution where there is a possibility that an employee with a mental health condition is disabled for the purpose of the Equality Act, and, in appropriate cases, medical advice should be sought and consideration given to reasonable adjustments in order to mitigate risk.

Acts or omissions will amount to unlawful discrimination where an employer treats a person less favourably because of their disability, or something arising as a result of their disability. Disabled employees are also protected where a neutral provision, criterion or practice is applied that has a disproportionate impact on them. In these circumstances, the employer would need to justify the requirement as a proportionate means of achieving a legitimate aim. In addition, disabled employees are protected against harassment and victimisation.

Finally, employers have a duty to make reasonable adjustments if a disabled employee is put at a substantial disadvantage compared with others in the workplace. Where employers are subject to this duty, they should take reasonable steps to remove or reduce that individual’s disadvantage. This could include allowing a more flexible working pattern, providing increased support, or changes to an employee’s role. Discrimination complaints are brought in the Employment Tribunalkurnatow and damages are potentially uncapped.

Recent developments

In May 2020, new ACAS guidance was published on the COVID-19 crisis and mental health emphasising employers’ duty of care to safeguard employees’ health, safety and well-being and the need for effective communication. It encourages employees to talk to their manager about how they are feeling, and gives managers tips about how to spot mental health issues within their teams.

Getting it right: top tips

• Incorporate mental health into health and safety risk assessments — Whether employees continue to work from home or plan to return to the workplace, it is important to include mental health as part of the employer’s workplace risk assessments. Employers should work collaboratively with employees to identify any of their concerns and put measures in place to mitigate them.
• Take proactive steps to support employees’ mental well-being — A number of employers have introduced active measures to promote and protect employees’ mental well-being by providing them with tools to manage their stress and increase their mental resilience. This could include giving employees free access to meditation and wellness apps, or providing access to a limited number of therapy sessions often as part of a broader employee assistance programme.
• View mental health through an intersectional lens — Mental health issues are likely to impact people differently. While managers should avoid making assumptions or relying on stereotypes, some themes to consider include:
  • Neurodiverse employees may have specific needs and require additional support when working from home.
  • LGBT+ employees may be more vulnerable during the pandemic depending on their personal circumstances and reduced access to support services.
  • Employees may be at a greater risk of domestic violence that can be exacerbated by lockdown conditions.
  • Female employees are more likely to take on the weight of additional childcare and housework, which could increase stress levels and require employers to be more flexible. Equally, some male employees may be more reticent about the impact on them of dealing with childcare, or about mental health care issues more generally.
  • BAME employees may respond to the impact of the Black Lives Matter (BLM) movement in different ways. Employers should consider how they can help employees deal with the effect of recent events, as well as work to shine a light onto persistent racism in the workplace.
• Consider making adjustments — Think about whether any employees affected by mental health conditions or stress at work require any adjustments. Be considerate with employees about a return to the workplace and provide support where necessary (e.g., by listening to concerns, holding inductions and training on any health and safety measures, and having a clear reporting system for feedback). It’s important to discuss potential adjustments with the employee concerned and have an open discussion about their needs. It will generally also be appropriate to seek medical advice where they have (or may have) a disability. Typically, adjustments could include a change in working hours, increased support, reducing workload, additional training, or mentoring. Some adjustments will be temporary but, in some cases, it may be reasonable to make permanent adjustments. Where there are changes to the employee’s work mix or volume of work, it may also be appropriate to adjust their pay and other contractual terms accordingly, but we recommend seeking specific advice.
• Communicate regularly — Stay connected with staff on a team level but also an organisational one. Acas recommends that managers keep in regular contact with their teams to check how they are coping and to use “wellness action plans” to put steps in place to support their team’s mental health. Regular communications about your organisational approach can also reassure staff. Allow your workforce to voice concerns and provide informal support. This will also enable you to spot any early signs of stress or difficulties.
• Encourage a culture of openness — One of the specific challenges is the taboo surrounding mental health. While this is beginning to change, employers can play a role by creating a culture where it’s OK to talk about mental health, and COVID-19 can be a catalyst for this. Where employees are willing, having role models who tell of their experiences with metal health and well-being, for example, as a blog or posted to intranet sites, can be a powerful tool to break down taboos and demonstrate commonality. Many employers have created affinity groups or employee networks on mental health, neurodiversity and/or well-being in order to create a safe space for employees to share experiences and support each other. They can also be a great way to channel education and training as well as other activities and events. Where an employer has an existing group or network, it should consult with them about updating relevant policies and practices and listen to feedback.
• Discourage “always on” behaviours — Encourage a clear separation between work and personal life by emphasising that employees should not be “online” 24/7.
• Provide training — Train managers and staff in mental health so they can spot any signs of mental health difficulties and spread awareness of mental health issues generally among the workforce. Employers could also consider training up some employees as mental health first aiders via an accredited course.