Written by Kate Sutherland and Andrew Maxwell
Last week, on 31 March 2021, The Chartered Institute of Personnel and Development (CIPD)'s annual Scotland conference took place and Harper Macleod was proud to be sponsoring this event. There were many interesting topics being discussed at the conference and one such topic was "Wellbeing lessons from Covid and beyond – unlocking sustainable business success in Scotland."
Professor Sir Cary Cooper who led the discussion on this topic at the CIPD conference made a strong case for employee wellbeing amounting to a strategic issue for businesses which, if undertaken correctly, will improve a company's bottom line. In our view, a successful wellbeing strategy can improve employee attendance and retention, as well as productivity and can reduce sickness absences. It can also help reduce the risk of claims being brought by employees for stress-related conditions or for constructive dismissal.
In this blog, we examine some of an employer's legal obligations around employee wellbeing and what steps employers might take to support those employees working from home.
Stress at work – what are an employer's legal obligations?
Employers owe a duty of care to their employees and this requires them to provide a safe working environment and a safe system of work for their employees. During the current climate, this includes when the employee is working from home.
Where it can be shown that an employer has failed to take reasonable steps to comply with their duty of care, and as a result of this an employee has been injured and the injury suffered was foreseeable, the employer may be liable to pay compensation. This includes where the employee alleges that they have suffered injury or damage as a result of stress at work.
Employers are required under the Management of Health and Safety at Work Regulations 1999 to carry out a "suitable and sufficient" risk assessment to determine the health and safety measures required in the workplace. It is advisable that this risk assessment includes a consideration of what measures may be required to minimise work-related stress.
Further, in every employment contract there exists the implied duty of mutual trust and confidence. An employee who is suffering from work-related stress can seek to argue that their employer has breached this implied term, for example by not managing their workload adequately or responding to concerns about the demands being placed on them. A breach of the implied duty of mutual trust and confidence may amount to a material breach of the employment contract and can form the basis for a constructive unfair dismissal claim.
Responsibilities for disabled employees
Employers have additional responsibilities for employees who have a mental or physical health condition which is treated as a disability under the Equality Act 2010 ("EqA 2010").
Many mental health conditions satisfy the legal definition of a disability under the EqA 2010. Although stress itself is not a disability, it is possible for common stress-related conditions to amount to disabilities, including depression. Those who suffer from a mental health condition which amounts to a disability are protected from disability discrimination, and, in certain circumstances, are entitled to reasonable adjustments from their employer.
Employers would be well advised to consider their workplace culture and the effect this may have on a disabled employee. For instance, in a case that came before the Employment Appeal Tribunal and subsequently the Court of Appeal (United First Partners Research v Carreras) it was found that an expectation or assumption that an employee will work late like everyone else, even though the employer did not expressly order the employee to do this, can in theory form the basis for a disability discrimination claim (whether or not this would in fact amount to disability discrimination would depend upon the particular circumstances of the case).
Employers should be proactive and vigilant for signs that employees may be experiencing difficulties or stress and take steps aimed at improving employee wellbeing including:
- introducing and implementing an employee wellbeing strategy and policy;
- stress risk assessments and audits (the Health and Safety Executive’s Management Standards approach offers helpful guidance – see below);
- operating an employee assistance programme;
- effective implementation of anti-bullying and harassment policies;
- supporting an individual employee, for example through flexible working arrangements or reducing workload;
- improving levels of physical activity by introducing cycle to work schemes and lunchtime jogging clubs;
- encouraging healthy eating by ensuring canteens and vending machines sell healthy food; and
- training line managers to spot and effectively respond to employees experiencing stress and mental health difficulties.
At the CIPD's annual Scotland conference, Professor Sir Cooper suggested that the amount of control and autonomy an employee has at work is central to the issue of their well-being. "Control" is also one area identified by the HSE's Management Standards that if not properly managed can lead to work-related stress. Another area specifically identified is "demands", which encompasses workload. You can read all of the Management Standards here.
The coronavirus pandemic resulted in an overnight shift in employment conditions for virtually all employees in Scotland. Many employees were sent home from the office to work from home and haven't returned since. Other employees had to work on the front line throughout the pandemic and have had to adapt their working practices to ensure they protect themselves and others from the virus. Another group of employees may have been furloughed from their role as a result of the pandemic and may not have returned from furlough at any point in the last year. In addition, with a large number of cases and sadly a high death toll too, employees may have suffered bereavement during the crisis.
What can employers do to support their employees’ mental health when working from home?
Even though flexibility in working hours and home working has many benefits for mental health, some employees may suffer from heightened stresses whilst at home. That may be due to the domestic demands of looking after children or others, some might struggle alone at home, and some may struggle to switch off and become overwhelmed by work.
Employers should ensure they communicate with their employees effectively so they do not feel isolated whilst out of the workplace and instead feel supported in their job role or whilst on furlough. Signs of a person’s mental health declining can be hard to notice whilst they are working remotely or are off on furlough so it is even more important to keep connected with your employees. Employers should ask their employees if they think the way they are communicating is working for the employees and ask for their suggestions; this might be phone calls, video calls, emails, or even WhatsApp messaging.
Good communication ensures that employers know the amount of work the employee is doing and can keep an eye out for heightened levels of stress or a decline in their mental health. Some managers may want to undertake training to become a Mental Health First Aider or a Mental Health Champion to help them to spot the warning signs of declining mental health, and have sufficient know-how to be able to refer those employees to specific services to assist them.
During the discussion on the topic of employee well-being at the CIPD's annual Scotland conference one suggestion was giving employee's the "right to disconnect" or otherwise seeking to control the amount of time employees are spending reading and responding to emails etc. It has been reported that many employees who are working from home have found it harder to "switch off" and some companies have found that their employees are working more hours at home than when they worked in the office. While, on the face of it, this may appear to be a good thing for businesses, it could very well lead to increased stress for employees and potential sickness absences. Communicating with employees about what is expected of them while they are working from home and actively encouraging them to have a set time at which they finish working and stop looking at their phone or laptop can help.
Get in touch
Please get in touch if you would like to discuss with a member of our employment team what steps you can take to better manage your employees' well-being and ensure that you comply with your legal obligations in this respect.
- Glasgow: 0141 221 8888
- Edinburgh: 0131 247 2500
- Inverness & Highlands: 01463 798 777
- Elgin: 01343 542 623
- Shetland: 01595 695 583