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 Top employment lawyers have come together with mental health charity, @WirralMind, to answer questions on supporting employees’ mental health, and some of the legal issues involved. 

A team of employment lawyers have joined forces with leading mental health charity, Wirral Mind, to help businesses support employees that are continuing to work from home.

Paul Hennity and Steven Davies, Employment Law Solicitors at Aaron & Partners, provided expert advice and practical tips to help employers understand more about mental wellbeing and the impact remote working can have on individuals.

They were joined by Rachel Gilbert, Training Manager at Wirral Mind, for the session, with the team also answering a range of frequently asked mental health questions that have emerged throughout the coronavirus pandemic.

Paul explained that with millions of UK workers forced to work from home due to the restrictions put in place by the Government, employers have faced many unique challenges that come with managing remote workforces.

He said: “A better and more positive working environment, where there is a focus on good mental health improves productivity, team morale and contributes to a positive reputation for your business.

“However, with research suggesting that 80 per cent of people in the UK felt that working from home had negatively impacted their mental health, employers are having to navigate an incredibly challenging period.

“COVID-19 and the subsequent national and regional lockdowns have affected all of our lives in one way or another and the situation has created a lot of uncertainty for everyone,” added Rachel.

“Employers must recognise the importance of supporting employees’ wellbeing and need to understand that everyone has experienced challenges and losses during this period.

“That’s why, together with Aaron & Partners, we wanted to answer some commonly asked questions to help employers understand the impact working from home has had and continues to have on employees, and how they can better support their mental health.”

Some of the key questions to come from the session have been listed below with advice from the speakers:

  1. Is there a duty on the employer even if the employee doesn’t have any obvious signs of mental health struggles?

Steven Davies explains that in contrast to physical impairments, mental impairments can often be more difficult to identify, and that can put an increased duty on employers to think carefully about mental health issues, which can so often be invisible. 

Under the Equality Act, several mental health issues can amount to a disability, and a common misconception is that employers that don’t know an employee is disabled can’t be liable, which we know is not always true due to the way in which the Equality Act is worded.  So, whilst an employer is not under a duty to make a reasonable adjustment if they do not know that the employee has a disability, the Act suggests that, in some circumstances, employers do have a duty to take the necessary steps to investigate if an employee has a disability, even where it may not be obvious.

  1. If you’re concerned about a member of staff’s mental health, how should managers approach it?

Employers should take the time to think about what they would need in that situation, and often employees talk about needing simple things like time, reassurance, respect and to be listened to, says Rachel Gilbert.

She continued to explain that it’s important when you approach an employee, to give them your full attention, plan a time to address employees concerns and don’t be afraid to ask how someone is and to show genuine concern for their wellbeing.

When you do approach an employee, there are three important things you could do to start the conversation. Firstly, note what you have observed, state your concerns and give reassurance and work with the person.

  1. If an employer doesn’t recognise the signs of an employee struggling with their mental health, what are the potential risks?

Steven highlights that a failure to recognise those signs can have a negative impact on the workplace, and there is evidence that workplaces with good mental health are far more productive. So, recognising the signs of poor mental health early, and taking steps to improve the situation will have a positive effect on both the employer and the employee. 

However, there are also legal consequences that we must consider, including claims for disability discrimination, and possibly unfair dismissal as well. An employment tribunal can order employers to pay compensation for loss of earnings due to the discrimination, and that is uncapped. They can also award compensation for any hurt or distress the employee has suffered because of that discrimination, which is referred to as an injury to feelings in law.  There is also the potential for personal injury claims if the employee has experienced stress or depression from the employer’s inaction. 

This could all result in expensive litigation, which can involve significant management time and legal costs which aren’t usually recoverable in employment tribunals.

  1. How can managers help employees stay motivated and engaged whilst working from home?

Rachel highlights that we all have mental health, and we all need to look after it as we would with our physical health. From an employer’s perspective, having open and honest discussions about mental health and the importance of it can be really beneficial.

It’s important to remind people to be taking regular breaks during the working day and think about how you can support them in doing things in and out of working hours that can help to improve their mental health, whether that’s getting good sleep, keeping a good work life balance, exercising or maintaining a good daily routine.

It’s really important to regularly check in with people and make sure that they are OK, ask whether there is anything they need from both a physical or mental health point of view or even from a workload point of view.

  1. Is there a point where working from home could be considered a permanent change to the place of work in an employment contract and would this cause employees’ rights to change? 

This is a really interesting question and something that many employers may not have considered, and which has received very little commentary explained Steven. In addition to the express terms contained within a written contract of employment, which, amongst other things,would usually set out where an employee is required to work, it is important to remember that a term can also be implied into a contract of employment by virtue of custom and practice, even if it is not expressly stated.

In determining whether this is possible or not, consider if the practice has been followed, without exception, for a substantial period of time.The longer this period, the more likely it is to become a term of the contract. Therefore, applying these principles, I think it is possible, in the future, that working from home could become an implied term of an employees’ contract. However, at this stage of the pandemic, my opinion is that it would be difficult for an employee to argue an implied terms to work from home because for most employers it is clearly a temporary measure put in place as a result of government restrictions and guidelines.

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