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Balancing Covid-19 compliance and employee wellbeing

There has been a wealth of commentary and advice for employers about how to deal with employee anxiety surrounding a return to the workplace in the ‘post-COVID’ world. However, one issue has been overlooked: what about employees who want to return to the workplace, contrary to Government guidance?

There has been a wealth of commentary and advice for employers about how to deal with employee anxiety surrounding a return to the workplace in the ‘post-COVID’ world. However, one issue has been overlooked: what about employees who want to return to the workplace, contrary to Government guidance?

While many have enjoyed the experience of working from home, the novelty has well and truly worn off for some. Recent studies on mental health and wellbeing have been damning: ONS data shows the number of people suffering from depression has doubled. The NHS has reported sharp increases in emergency referrals for crisis mental healthcare [1], while an Ipsos Mori survey highlighted that six in ten Britons are finding it harder to stay positive day-to-day – an 8-point increase from November last year [2].

With no guarantees on when the situation will be resolved, employers need to focus on measures that can be implemented longer-term to help employees manage their work-life balance whilst complying with government guidance.

Working from home and employee welfare
Given current Government guidance and the latest available data about the high transmission rate of the new variant of COVID-19, the starting point must be that those who are able to work from home, should.

To that end, employers need to be mindful of the additional pressures placed on their workforce and consider embracing solutions that may include flexible working on a more long-term basis, encouraging employees to communicate more, and offering training in coping strategies that assist with the mental load of balancing work and home.

Alternative options to alleviate employee concerns should be carefully explored before considering a return to the workplace. Some employers have been incredibly innovative in terms of what they can offer to give some relief to staff, including hiring tutors to give online sessions for children, and providing counselling or support packages for employees.

For some, the solutions may be far simpler – encouraging employees to ‘buddy up’ and share workloads to accommodate flexible working around home schooling demands, or even scheduling regular virtual coffee breaks for those feeling isolated and overwhelmed.

It is important to remember that employers remain legally obliged under the Health and Safety at Work etc. Act 1974 (HSWA) to ensure, as far as reasonably practicable, the health, safety and welfare of their employees, regardless of where they are physically working. When individuals are working at home, employers should ensure their employees have a suitable working environment and have the equipment they need to work effectively. However, to effectively safeguard the welfare of their employees, employers should also encourage staff to continue to take rest breaks and to prioritise their wellbeing to avoid disruption caused by the longer-term effects of poor mental health.

Who ‘cannot reasonably work from home’?
When alternative solutions have been exhausted, employers will need to consider whether a request to return to the workplace can (or should) be accommodated. Assuming that the employee’s role can be performed from home, but the employee’s clear preference is to return to the office, there are several considerations to make before an employer reaches a decision.

Employers first need to consider whether they could be under a legal duty to consider the request. For example, if an employee is suffering from a disability within the meaning of the Equality Act 2010, an employer is obliged to consider making reasonable adjustments to an employee’s working environment and remove any disadvantages suffered as a result of their disability. Mental health conditions may well fall within this definition if they are sufficiently long-term and serious. However, the duty only applies to adjustments that are ‘reasonable’ – could a request to work in the office be considered as such?

This will depend on two issues: (i) the seriousness of the employee’s mental health condition – are they at serious risk of harm if they are not permitted to attend the office; and (ii) can the employer provide a safe place of work in the current climate?

If there is no specific legal duty, the employer should consider if granting the request would protect the welfare of the employee under their HSWA obligations and then weigh the risk to the employee in remaining at home against the risk of the employee attending the workplace where they are at a higher risk of contracting COVID-19.

Evidently, where the risk of returning to the workplace cannot be suitably mitigated or outweighs the potential risk to an employee’s welfare from continuing to work from home, then it would not be appropriate for the request to be granted.

It is strongly advised that any risk assessments that inform decision making regarding specific employees are documented in writing in the event an employer is challenged to justify their choice to allow employees access to the workplace during an enforced lockdown.

A Covid Secure workplace
Before any employees return to the workplace, employers should demonstrate working practices are objectively reasonable and comply with the COVID Secure guidelines by producing a carefully considered and specific COVID-19 risk assessment. This should identify essential vs non-essential activities and appropriate risk mitigation measures. Of course, the principle mitigation measures under current Government guidance involve implementing social distancing and avoiding person to person contact, wherever possible.

Employers should communicate the new working arrangements to all employees before they return to the workplace and may wish to consider imposing additional conditions on employees. This could include restrictions on access (including days/hours and areas of the workplace available) and obtaining written agreement from the employee that any and all measures implemented to control risks in the workplace will be followed at all times.

As with all risk assessments, the risks must be kept under review to ensure the mitigation measures remain effective and appropriate. The increased transmissibility of the new variant has already prompted discussions about a requirement to review the COVID Secure guidelines at a Government level to ensure the measures currently advised are effective enough. As such, it will be crucial that employers keep up to date with evolving guidance and respond promptly to any changes to the advice if employees are to be allowed back in the workplace.

Employers looking for guidance on supporting those staff who cannot reasonably return to the workplace can visit the Walker Morris Future of Work resource page.  Based on a research project between Walker Morris and Leeds University Business School, the page investigates the boundaries between work and home, communicating with colleagues virtually and the impacts home working has on productivity, presenteeism and employee mental health and wellbeing.

Lucy Gordon, Director Employment Team & Claire Burrows, Specialist Regulatory Compliance Lawyer of Walker Morris

[1] https://www.newstatesman.com/politics/health/2021/01/it-s-not-just-you-why-current-lockdown-having-extreme-effect-mental-health

[2] https://www.ipsos.com/ipsos-mori/en-uk/britons-finding-it-harder-stay-positive-day-day-during-lockdown-3

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