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Permanent remote working? Addressing mental health challenges in the UK

  • United Kingdom
  • Employment law

19-05-2021

As the UK continues to move out of lockdown it is becoming clear that, for many employers, higher levels of remote working will be retained after the pandemic has finally receded. Increased productivity, a healthier work-life balance, improved job satisfaction and lower costs have been cited as remote working benefits. Employee surveys among UK employers suggest high levels of support for a mix of home and hybrid working and many will embrace this permanent change to working arrangements.

However, remote working is not a panacea. For some employees, it may not suit their individual circumstances and, of particular concern, it may cause or exacerbate mental health conditions. For some employers, last year’s shift to remote working was a temporary response to an emergency situation, with mental health risks and arrangements receiving less attention than normal.

Where remote working is confirmed as part of ongoing HR strategy, employers are therefore advised to conduct a review to ensure that mental health is being managed appropriately. If not, there is a risk that remote working, being “out of sight, out of mind”, could surprise some employers with unwelcome legal, ER and reputational challenges.

Mental health and remote working factors

Poor mental health can include stress, anxiety and depression and, when prolonged, may be diagnosed as a medical condition. It may be unrelated to work, reflecting factors personal to the employee, or it may be work related stress (typically a reaction to excessive pressure at work) and can result in serious mental health illnesses. Both need addressing by employers, particularly where they risk negatively impacting on the employee, colleagues and the workplace.

While remote working raises many of the same mental health issues as with office working, there are additional issues to consider. These, together with a summary of how mental health may impact negatively on employers, are summarized in the tables below:

Mental health: remote working risks

 

Mental health: impact on employers

Work/life boundaries blurred – “always on”

51%* of UK work-related ill health is due to stress, depression and anxiety

Reduced contact, increased isolation

Poor mental health is estimated to cost UK employers more than £33 billion a year**

Reduced support

It is a significant cause of long-term absence

Reduced training and development

It is expected to increase due to the pandemic

Working longer hours/insufficient breaks

Reduces morale

Inadequate workspace (small, shared etc)

Increases accidents as well as staff turnover

Conflicting personal demands (childcare etc)

Causes HR problems (e.g. grievances)

IT challenges, employer monitoring

Worsens performance and conduct

Domestic abuse risks

Reduces productivity

*2020 HSE Report
** 2017 Stevenson/Farmer Review

Mental health: legal risks

Reflecting the above negative impact on employers and employees, there is a clear business case for addressing mental health within the workplace. What about the legal obligation to do so? The principal legal risks in the UK arising from employers’ actions or failures, related to employee mental health, are summarised below:

  • equality: equality legislation in the UK protects a worker with mental health conditions if they have a mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental health illness will be treated as having a substantial adverse effect if, but for treatment (such as anti-depressants), it would be likely to have that effect. Generally, a tribunal will expect expert medical evidence where a mental impairment disability is alleged. The UK legislation prohibits disability discrimination and also puts employers under a duty to make reasonable adjustments for disabled workers and job applicants who are placed at a substantial disadvantage because of their disabilities
  • health and safety (H&S): employers in the UK have a legal duty to ensure, so far as is reasonably practicable, the H&S at work of their workers and this is the same whether they are working in an office, on a site or remotely from home. That duty includes conducting risk assessments to identify mental health-related risk, appropriate measures to control that risk and consulting with any recognised trade unions, worker H&S representatives or with workers directly, as necessary
  • personal injury: employees may have a claim against their employer for breaching the duty to take reasonable care for the employee’s H&S, including mental health, where the work has caused or exacerbated the problem
  • unfair dismissal: should an ongoing mental health condition precipitate a capability procedure culminating in dismissal by the employer, the employee may claim unfair dismissal. Alternately, the circumstances may result in the employee resigning and claiming constructive dismissal
  • working time protections: employers have less visibility of remote employees’ working hours and there is evidence that the blurring of lines between home life and work has resulted in some employees working increased hours, taking fewer breaks and being “always on” - culminating in stress and other mental health conditions. Excessive workloads and job insecurity may also be a factor
  • whistleblowing: employees may have whistleblowing claims if, for example, employers fail to respond to systemic mental health concerns in the workplace

Successful claims on the grounds above, or enforcement by the UK Health and Safety Executive (HSE), risk significant financial penalties as well as reputational damage.

How should UK employers respond to remote working and mental health challenges?

Many UK employers have stepped up measures to support the mental health of remote workers, including: increasing employee engagement opportunities (digital team meetings and 1:1’s, virtual town hall Q&As and coffee breaks etc); signposting 24/7 employee assistance programmes; ensuring that employees understand expectations around working hours (including the importance of taking rest breaks); monitoring workloads; and altering hours of work for employees caring for children. A return to a workplace may be appropriate (where practicable) for workers facing mental health difficulties and this is supported by the UK Government’s Working Safely COVID-19 guidance.

Going forwards, employers should review whether additional proactive organisational, as well as cultural, measures are appropriate where remote working (full or part-time) is set to become a permanent working arrangement. Reflecting guidance from Acas, the HSE and the 2017 UK Government appointed Stevenson/Farmer review (which included research with over 200 UK employers and stakeholders from across the voluntary, public and private sector), these measures could include:

  • undertaking work-related mental health and stress audits: to highlight any hot spot mental health issues amongst remote workers, identifying causes and steps forward
  • assessing “always on” mental health risks amongst remote workers: as part of the above audits, some employers will seek to identify whether remote workers are engaging in excessive work-related electronic communication, such as emails, phone calls, text messages and virtual meetings, during non-work hours and holidays. Where this is a potential risk, consider introducing policies which establish clear rules and mutual expectations, such as what constitutes working time, the importance of taking breaks and daily rest, work availability and handling workloads, performance goals and measurement and how an employee can raise concerns
  • consulting the workforce: engaging with any recognised trade unions, worker H&S representatives or with workers directly, as necessary
  • equipping line managers: reflecting the reduced opportunity for face to face communication, line managers should be trained and supported to hold open conversations about mental health - potentially digitally or on the phone - and to spot and respond to the signs of mental ill health at a distance, as well as how to respond confidently and fairly, plus managing reasonable adjustments
  • reviewing the adequacy of existing employee support programmes: how have they performed over the pandemic and what improvements could be made?
  • updating grievance, stress and mental health policies: to address the particular needs of remote working
  • ensuring strong leadership, communications and transparency: to set a positive culture and reduce stigma across the organisation, such the CEO outlining the organisation’s plan for good mental health and a senior manager being accountable for progress