“The trick is to keep pedalling” the saying goes, but the more important question is “how long for?”

Matthew Potter & Paula Bailey

Although we do now have some light at the end of the tunnel following the Government’s announcement on 22 February of the staged roadmap for easing coronavirus lockdown, many employees are already living with the day to day fatigue of poor mental health. The uncertainty of how long the pandemic is going to last in itself has been a form of psychological torture befitting of a special forces reality TV show. Added to that uncertainty have been the pressures of homeschooling; watching out or caring for elderly or shielding relatives; furlough and the financial problems it presents; and the simple lack of regular contact and routine with friends and colleagues.

Countless LinkedIn posts and articles have made us all too aware of the effect that all of the aforementioned issues (and no doubt many more) have had on positive mental health. Even though some might think that we are on the home straight it is now that we probably need to be more aware than ever of our employees’ wellbeing.

For some, the release and joy of getting back into the office will be countered by the pressure to return to the routine of the commute; the need to work to a finely tuned timetable of trains, buses or pick up and drop off times so that we can juggle our incredibly busy lives. For that reason employers may wish to start considering giving their staff the tools to return to those busy and hectic lives, whether that is through access to resilience seminars and sessions, Employee Assistance Programmes or discussing phased and flexible returns, when we are instructed to return to our places of work. In many sectors, there has never been such an opportunity as now to be more creative in terms of the way that employees work and also allowing employees going forward to work in the most effective and productive way.

The flexibility and phased nature of a return to the work place though may not only be a luxury but a legal necessity. The Equality Act 2010 protects employees from discrimination in the work place and includes protection for those who have a mental impairment where that impairment has a substantial and long term effect on an employee’s ability to carry out their normal day to day activities. In the event that an employee has the protection of the Equality Act then one of the legal requirements an employer must consider is the need to consider “reasonable adjustments”. Sound familiar? So there may even be a legal requirement to permit employees whose mental health has been affected by the pandemic to work flexibly and respect their coping strategies if these amount to reasonable adjustments to prevent them from being placed at a substantial disadvantage as a result of their disability.

The strongest argument that employees will be able to advocate going forward as to why they should continue to work from home is that they have worked effectively from home and without a reduction in productivity for over a year. If the employee can demonstrate that working from home works, then they are likely to argue ‘why can’t that continue now’?

As employers, if we have not done so already, we should review our policies and procedures and ensure that they are fit for purpose in terms of the way that we propose and agree that staff can work from home going forward, particularly taking into account health and safety issues that may arise from home working.

We will also need to take into consideration going forward track and trace and self-isolation. Those issues will not disappear overnight but we will begin to forget the obligations that we owe to employees in respect of the same. If in 6 months’ or a year’s time we act in a way that is prejudicial to employees who have had to self-isolate then the employee may have legal recourse. Going forward, it will therefore be important to constantly review and relay to all staff their duties and obligations should they show symptoms or manage employees who may have COVID symptoms.

Finally, what should employers do regarding the vaccination of employees and imposing requirements on staff in that regard? That debate is worthy of a article by itself and one that can be found here.

“The trick is to keep pedalling”!

For more information in relation to coronavirus and employment law, please contact a member of the employment team.

Share this

Gold Patrons & Strategic Partners