We are now in the third week of the UK Government’s ‘stay at home’ measures and are experiencing the predicted significant increase in the number of cases of Covid-19 and associated fatalities.
The purpose of this briefing note is to advise on a systematic approach that employers can take to protect the mental wellbeing of their employees during the outbreak and is intended to complement the earlier paper on the risk-based approach to physical health.
The immediate and longer-term mental health impact of the Covid-19 outbreak is increasingly gaining attention. On 6 th April 2020 the Chief Medical Officer, Professor Chris Whitty acknowledged that the Government was working on how to balance the effect of the virus against mental illness and financial problems caused by the measures designed to fight it. Separately, in a letter to the Health Secretary a group of forty cross party MP’s have urged the Government to safeguard people’s mental health due to its ‘inextricable link’ with physical wellbeing.
The rapid changes and unique situation have already had a significant effect on our lives and the connection with mental health is clear; from coping with isolation, coming to terms with concerns for our own health as well as that of family and friends, the availability of food leading to panic buying, whether we can effectively assist with our child’s education, pressure on relationships during enforced togetherness, the financial impact of losing work or being furloughed and otherwise any novel demands introduced by home working.
The mental health impact is not unique to the UK; in the United States the Substance Abuse and Mental Health Services Administration’s ‘Disaster Distress Helpline’ saw an 891% increase in call volume last month compared with March 2019. It has also been reported that an Italian nurse treating Covid -19
patients took her own life for fear of having spread the illness.
The Health and Safety Executive (HSE) defines stress as ‘the reaction which individuals have due to excessive pressures or other types of demand placed upon them. It arises when they worry that they can’t cope’.
There are several key words within this definition. We will have experienced ‘pressure’ and ‘demand’ before the outbreak and the ‘reaction’ is individual to our own circumstances and tolerance. The use of the word ‘excessive’ is notable given Professor Chris Whitty’s comments on the need for balance; whilst accepting the increased pressures and demands it is the Government’s aspiration to curtail their duration in order to minimise the stress experienced by the UK population.
As with physical health, employers have a duty of care towards employees under the Health and Safety at Work etc Act 1974. Furthermore, it is expected that a documented risk assessment will be prepared under the Management of Health and Safety at Work Regulations 1999, and employees can claim damages if they suffer injury and/or illness caused by their breach.
The legal response to workplace stress is a developing area, and the following is intended to provide a summary to assist employers in understanding their duty of care.
The case of Walker v. Northumberland County Council in 1995 established that the duty of care owed by employers to employees also extends to psychiatric injury and that work-related stress can result from either the character of the work carried out or the volume of work. A breach of duty was found where the County Council failed to adequately support Mr. Walker on his return to work, resulting in a second nervous breakdown which was foreseeable. The overall cost of this management failure has been estimated at around £400,000, of which £175,000 were damages.
Several useful practical propositions were made in Hatton v Sutherland in 2002 to include:
- An employer is usually entitled to assume that the employee can withstand the normal pressures of their job unless a particular problem or vulnerability is known, such as a previous mental health illness.
- There is a duty to take action if there are indications that the employee can’t cope or if there is a foreseeability of psychiatric harm because the job involves exposure to traumatic incidents  . This is particularly relevant to those working in the healthcare sector.
- The employer is generally entitled to take what the employee is telling him at face value, unless there is good reason to believe otherwise.
- There may well be a combination of stressors arising from the home and work that are difficult to separate. Provided that the working conditions materially contributed to the harm suffered, the onus will be on the employer to prove that other causes contributed to the injury.
A civil remedy is also available under the Protection of Harassment Act 1997 (PHA 1997) if an employee suffers anxiety or financial loss due to harassment, without having the burden of establishing that the injury was reasonably foreseeable. Employers can also be vicariously liable for breaches of the PHA 1997 by their employees where the harasser must have knowingly caused serious distress or alarm on at least two occasions  .
Employers should benchmark the following six risk factors against their existing procedures for stress management. These factors are taken from the Health & Safety Executive’s stress management standards  which if not properly managed will present an increased risk of workplace stress. Throughout the benchmarking process the employer should be evidencing how each risk factor is being adequately managed but also ensure that there are local / departmental systems to respond to any individual concerns.
Demands associated with the employee’s workload, work patterns and work environment are likely to have changed. For some there may be a significant manufacturing change to the high-volume production of essential medical equipment whilst poor Internet and telephone connections may have an adverse influence on productivity and availability of homeworkers.
Employees should be provided with adequate and achievable demands in relation to the agreed hours of work. Their skills and abilities need to be matched to the job demands with roles and tasks designed to be within their capabilities.
Employees need to be involved in the way they do their work, particularly where it is imposing on the home environment. To achieve this, employees should have control over their pace of work where possible, be encouraged to use their skills and initiative, be encouraged to develop new skills, have a say over when breaks can be taken and consulted over their work patterns.
Managers and colleagues need to provide support, assistance or guidance especially where there are new roles or tasks. This is especially important where there is a perceived or real increased risk of infection or exposure to traumatic events.
Employers should have policies and procedures to adequately support employees, systems to enable and encourage managers to support their staff and systems to enable and encourage employees to support their colleagues. Employees should be informed on the available support (such as a mental health first aider or how and when to access counselling through an Employee Assistance Programme), how to access resources (such as personal protective equipment, sanistiser), how to do their job and be given regular, constructive feedback.
Employers should promote positive working to avoid conflict and unacceptable behavior, with a freedom from bullying and harassment. This can be a particular challenge where home working has resulted in organisational separation and employees are being forced to work in non-essential businesses.
To manage the risk factor employers should have policies and procedures to prevent, report or resolve unacceptable behavior and a process where employees can share information relevant to their work.
Employees need to understand their role(s) within the organisation, and these roles should not conflict. For example, adequate social distancing should be compatible with the role or task, which has been a particular challenge for the construction industry and food retail sector.
Employers should ensure that the different requirements they place upon employees are compatible, that information is provided to enable employees to understand their role and responsibilities and that employees can raise any corresponding concerns, uncertainties or conflicts.
Employers need to engage with employees on organisational change such as the introduction of home working, furloughing of staff, financial distress (with several high-profile business failures already reported) and the re-opening of workplaces.
Employees will need to be provided with timely information to enable them to understand the reasons for proposed changes, the probable impact and timetable of any changes and given the opportunity for consultation and feedback. Employees may need instruction or training to enable the change and on-going support during their implementation.
Where there are gaps in the current management of these risk factors, the employer needs to introduce appropriate controls in a timely manner.
Where a concern is raised, or there is a foreseeable risk of harm or an indication that an employee is struggling with their mental health the employer needs to make a prompt intervention which should be formalised through a personal risk assessment and coping strategy.
The response should be led by the line manager (unless they are a causative factor) with support from human resources and a health and safety professional as necessary. The risk assessment must address the employee’s specific circumstances, be documented, shared between the relevant persons and then regularly reviewed to ensure that controls remain appropriate. The line manager (or other suitable person) must actively check that the agreed controls are being implemented.
The coping strategies needed in response to a personal risk assessment are likely to be found in the HSE’s stress management standards and could include scheduled communication, training and bespoke work patterns.
Employees should also be referred to Public Health England guidance on the actions they can take to safeguard their mental health during the outbreak. These include maintaining contact with family and friends, keeping a regular routine and limiting intake of media coverage of the outbreak  .
This information is correct as of 7 th April 2020, but it is recognised that Government advice can change as the outbreak develops. The World Health Authority, Public Health England (https://www.gov.uk/government/organisations/public-health-england), NHS (https://www.nhs.uk/conditions/coronavirus-covid-19/) and Health & Safety Executive (www.hse.gov.uk) resources are the most helpful and are regularly updated.
We are available to discuss any concerns you have regarding mental health in the workplace, to include the development of a management system and how to effectively respond to any current cases.
 Melville v Home Office
 Majrowski v Guy’s and St Thomas’s NHS Trust