No doubt we are all feeling the strain of the past few weeks and employees will be faced with a myriad of challenges in the current climate. One of the many is the new norm of working from home.

This may be even more of an issue now the novelty of the lockdown has worn off, Easter holidays are over and we know we have at least three weeks more of lockdown.

We consider below some of the legal and practical challenges faced by employers and the steps that they should be taking to try to ensure that they discharge their duties to employees who are working from home. These include taking steps to protect the mental health of the workforce by supporting and assisting employees. Getting it right is important from a legal risk point of view, but it is also a key part of managing employee relations.

COVID-19 has turned a significant percentage of office workers into "remote workers" almost overnight. Many studies have shown the positive impact of home working but that may not be the reality here, in the face of an urgent crisis, where home working is applied wholesale to people who have not worked remotely previously and there is no short-term end in sight.

It is also not simply working from home on an employee or employer's terms as might had been the case pre-pandemic. For example, home working may now mean working from home whilst also looking after children of school age or working from home with other householders who are doing the same; working from home alone; and/or working from home with far too much to do or too little to keep the employee occupied. Normal routines will likely no longer exist and employees may find that the boundaries between work life and home life are almost non-existent (giving a whole new meaning to the challenges of achieving "work-life balance").

The reality is that these factors, together with the feelings of isolation, and anxiety and distractions because of what is happening globally, are likely to have a negative impact on employees' mental health and productivity.

If you are interested in understanding more generally what employers can do to discharge their duties to employees who are working from home and those who can't work from home or how employers can deal with some of the employment law issues which are arising as a result of the pandemic, we have provided easy to digest information and practical tips in the articles listed below.

  • How UK employers can deal with the special circumstances created by the coronavirus (COVID-19);and
  • What should UK employers be doing to keep their employees safe when they are working from home? What about those who can't work from home?

The Legals

Health and safety

Employers have a duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employees and self-employed people also have important responsibilities too but those responsibilities are outside of the scope of this note.

In practice, this means employers making sure that their employees and others who are affected by their business in some way are protected from anything that may cause harm. They must do whatever is reasonably practicable to achieve this.

The employer's duty extends to protecting both the physical and mental health of the employee. In the circumstances, it will not be reasonably practicable to take some of the usual steps which might be associated with limiting the risks to an employee's mental health. However, it will still be possible for an employer to assess the risks, albeit remotely, and take practical steps to help the employee manage the situation.

In the "Practical Tips" section of this alert, we set out the steps employers can take in these circumstances to promote wellbeing and reduce the chances of work-related mental health problems as well as providing some useful initiatives that might help colleagues support one another.

Employment Issues

Perhaps the most immediate concern is supporting those employees with a pre-existing mental health condition, but with the ongoing pandemic comes the real risk that more and more employees will begin to experience mental health issues. Some of those employees may well have a mental health condition that constitutes a disability and will be protected by the Equality Act 2010. In those circumstances where the employee is placed at a substantial disadvantage because of home/remote working arrangements (or a requirement to continue to attend the workplace) the employer will have a duty to make reasonable adjustments. Quite what is reasonable in the current climate is likely to pose an immense challenge for some employers not least because the usual routes to identifying adjustments including Occupational Health referrals, from which the employer may then determine what is reasonable may be closed.

Practical Tips

What might employers do directly?

The steps taken to manage the negative effects, to employee's mental health and wellbeing, of working from home for a prolonged period should be tailored to suit the organisation's requirements. As well as the practical tips below, the following is a list of overarching principals which employers should keep in mind:

  1. Communication is key: These are difficult and unsettling times. At present, it might feel like the only topic of conversation is COVID-19 and that all the news is bad. People have a lot of questions too. There is also a certain amount of "scaremongering", especially on social media, which will no doubt impact upon employees. Now really is the time for employers to step in and offer some "caremongering".

    Employees should be kept up-to-date regularly on how the developing situation is impacting the business, the impact on them, and the steps the employer is taking to manage the situation. The communications should be as consistent, honest and as clear as possible. Ideally, there would be: a central "hub" where information and tips on wellbeing and staying connecting are stored; a point of contact whom employees can approach if they have any concerns; and centralised communications of the type envisaged in this paragraph.

    Aside from formal communications, employers should encourage speaking in general. In the office employees may chat whilst making a cup of tea, or just whilst walking past a colleague. That cannot be replicated when working from home but a call to someone who you have not spoken to for a while may go a long way.
  2. One size does not fit all: What works for one employee will not necessarily work for others. For example, some employees may live alone and so will be facing a long period with no human contact at all aside from a quick conversation with the cashier at their local supermarket. Some may like this and some may not.

    Others may be used to working from home but not used to having to do it with another householder or several children underfoot. The processes – and support - which employers put in place should be tailored to individual employees. The differences should also be acknowledged and accepted – we all may need to adapt our own preferred practices to accommodate others.

    Managers should also not assume employees have the same set up as themselves. Not everyone has space for an office, or more than one monitor. Some people will have moved in with parents or family (rather than be alone) and may have to share spaces. This will be hard.

    This means conducting a form of risk assessment in order to identify individual needs. Given the current circumstances employers may not be able to do a full and wide - ranging one, and the risk assessment can be as straightforward as line-managers or supervisors speaking with employees about how they are feeling, what their needs are and what the employer can do to help. Employers should listen to their employees, they are usually the experts at identifying what they need. Employers might not be able to give them everything they need but they can listen and try to take reasonably practicable steps to manage the risks. If employees cannot identify the adjustments that they need then it will likely be a case of trying certain adjustments and seeing which works. Employees should be heavily involved in this process.
  3. Identify and protect the most at risk when working remotely: Some employees will find it more difficult to work remotely than others. These include employees who are new to the business; those employees who are not used to working from home; employees who used to have a thriving social life with their colleagues and otherwise; and employees who live alone. As above some employees may not have easy access to suitable equipment or a good environment to work from home.

    There are also those with childcare responsibilities and home-schooling to juggle.

    Special care should be taken to consider and address as far as is reasonably practicable the concerns of this category of employees.

Employers might employ one or more of the following practical tips:

  1. Trust your staff. Working from home does not mean a licence to shirk and people generally do not.
  2. Lead from the front. Team members hearing stories from leaders of what has gone well, and what hasn't, will help boost confidence, reduce feelings of isolation and normalise it as best as possible. It also shows what is ok and that we are all in the same boat. Had a video conference where a participant's child makes an entrance? Dog had a barking fit? Mention it to colleagues and mention that it may actually be quite nice to meet the small and/or furry ones!
  3. Encourage employees to develop a new routine where possible and discourage them from working at times when they would not do so otherwise. Be flexible to allow routines different than the usual set office one. Managers should continue to consider the Working Time Regulations 1998, including breaks, rest periods and maximum working week. For example, managers can keep an eye on this by noting times of emails and phone calls but bear in mind that some employees will need be work different hours in order to manage their caring responsibilities and employers should be flexible to different approaches. Mobile phones have a "do not disturb" setting for a reason, employees should not be afraid to use it;
  4. Encourage employees to take regular breaks and avoid dining "al desko" for breakfast, lunch and dinner. This can (and should) include exercise during the day. Some employees may enjoy going for a run or exercising outside whilst it is still light (such as in between calls) and they should be afforded the chance to do so where possible;
  5. Provide employees with practical tips about relevant issues like how to manage anxiety, how to stay active and tactics to promote healthy sleep. There are plenty of blogs and videos about these issues on the internet. An example of this is the Wellbeing Wednesday being implemented at Gowling WLG.
  6. Be considerate of the new demands on employee's time and be flexible. Some may now be the sole carer for a dependent or need to share child care responsibilities. These employees may need to consider more flexible working hours to suit;
  7. As mentioned above check-in with employees, particularly those most at risk when working remotely in these circumstances. Not seeing employees every day means it will be more difficult to spot changes in behaviour which could be a sign of declining mental health. If employers have the means to do so, this could be done by video call. If not, telephone calls are the next best option. To save time where there are lot of employees to consider, employers could think about dividing employees into small groups, each headed by a senior member of staff. These groups could meet by video or phone call periodically to catch-up and share concerns. Keep in mind that those in the vulnerable category may require more time and/or time on a one-to-one basis;
  8. Reward and respect employee's honesty. If they are struggling, they should feel that they can refer to their manager or other designated channels and that they will be helped and listened to on a confidential basis;
  9. Consider that at this time, some employees may have too little to do and some might have far too much to do (most of which might be urgent if it relates to dealing with the ongoing unprecedented circumstances). Where possible, consider reallocation of tasks and redeploying employees to areas of the business which need help and where the employee can be useful;
  10. Set up a "buddy system" to ensure that each employee is assigned to another employee whom they should check-in on (by phone or video call) periodically. For some, this might be too intrusive and may be unnecessary so consider allowing employees to sign-up for a buddy; and
  11. Relax the rules on use of work video, conference call and chat facilities so that employees can use technology to hold virtual meetings and to chat to one another during the working day and in the evenings. Virtual coffee breaks or Friday night drinks are a great way to help employees relax and keep in touch.

Aside from legal compliance, the benefits of helping to maintain good mental health and wellbeing amongst employees will likely include sustained productivity, motivation and creativity.

Please let us know if you would like to discuss any of the issues raised in this insight.