While some people are enjoying working from home, this is not the case for everyone and the negative impacts over several months are taking a toll on some employees.

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 also cope with caring responsibilities others, such as children.

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

An employer’s health and safety duty extends to mental health as well as physical health. The employer is not obliged to do everything within its power to prevent injury; it need only take ‘reasonable precautionary steps’ to ensure their employees’ health and safety. This responsibility exists if your employees are in the workplace, on-site or working from home.

Look out for potential disabilities

Employers 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. Mental health conditions, such as anxiety or depression, can amount to a disability if it has a substantial adverse impact on the employee’s ability to carry out day-to-day activities and is long lasting. If an employee has a disability, then an employer must not discriminate against them because of their disability and must consider making reasonable adjustments.

Whilst alcohol or other addictions would not be regarded as a disability under the Equality Act 2010, it can be hard to disentangle addiction from other mental health problems as addiction can be a symptom of an underlying mental or physical impairment. 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 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 data protection laws and your internal privacy policies.

How we can help

Good communication and proactive management are key to supporting employee wellbeing, but where the employee is unwell 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 Kerry Curd  in the  Employment Team on 01626 202404 or email [email protected].  WBW Solicitors has offices in Newton Abbot, Exeter, Bovey Tracey, Exmouth, Honiton, Launceston, Paignton, Torquay and Sidmouth.

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.