Protect staff as UK hospitality sector reopens

Employers have a legal duty to protect workers from stress in the workplace. They should act now to undertake a risk assessment and put any necessary control measures in place ahead of further reopening scheduled for 17 May, with similar further reopening hoped to take place in Northern Ireland on 24 May. Failure to do so could result in enforcement action and fines.

This week is Mental Health Awareness Week, and employers should seek to capitalise on this by putting in place support mechanisms and creating a culture where workers feel able and equipped to take on the unique challenges that Covid-19 has created for the hospitality sector. This will also put employers in a good position in the face of an increased regulatory focus on workplace mental health by the Health and Safety Executive (HSE).

The scale of the mental health challenge

The hospitality sector has been particularly badly affected by the pandemic. Many establishments were forced to close completely for many months, with prolonged uncertainty around reopening. The toll that this will have taken on the mental health of workers cannot be underestimated and may well be exacerbated on reopening.

New requirements for staff to be able to police strict controls such as limited time slots; social distancing; restrictions on social group sizes; and, in Scotland, curfews will place additional demands on them and must be included in the employer’s risk assessment, with appropriate mitigation measures put in place. These measures could include additional training on dealing with the unique circumstances of the reopening, and the provision of support for workers struggling with the additional responsibilities required of them as they encourage customer compliance with the rules. This is especially so where customers’ alcohol consumption may impair their rational decision-making.

Hospitality employers’ duties

UK health and safety legislation requires employers in the UK to ensure the health, safety, wellbeing and welfare of workers but, historically, there has been a greater focus on physical health and safety. While the law has not changed, there is an emerging change in emphasis. The HSE has emphasized the need for employers to consider “psychosocial” risk as part of the risk assessment which is undertaken to ensure a ‘Covid-secure’ workplace, with organisations with over 50 employees also expected to publish the findings of this assessment on their website.

Additionally, the World Health Organisation (WHO) has warned that the need for mental health and psychosocial support is expected to “substantially increase in the coming months and years” in light of the anxieties, pressures and stresses related to the Covid-19 crisis, in line with past experiences of emergencies. It has called for investment in mental health programmes at both national and international levels to ensure appropriate support is available to meet the anticipated additional demand.

In fulfilling their general health and safety obligations, employers with five or more employees are required to undertake an assessment of the risks employees are exposed to at work and to act on it. This includes the risk of work-related stress. Employers also owe a common law duty to their employees to take reasonable care in respect of foreseeable risks of harm.

Guidance on addressing these issues is provided by the HSE in its ‘management standards’ approach to tackling work-related stress. The standards cover six core areas that, if not controlled, can contribute to poor mental health. They are:

• demands - including issues such as workload, work patterns and the work environment;
• control - how much say the person has in the way they do their work;
• support - including the encouragement, sponsorship and resources provided by the organisation, line management and colleagues;
• relationships - including promoting positive working to avoid conflict and dealing with unacceptable behaviour;
• role - whether people understand their roles within the organisation and whether the organisation ensures that they do not have conflicting roles; and
• change - how organisational change, whether large or small, is managed and communicated in the organisation.

Employers are not legally obliged to implement the management standards. However, doing so will be considered evidence of compliance with their legal duties.

Health and safety regulators have made it clear that the health and welfare of workers must be appropriately managed during the current crisis. There is likely to be a period of particular interest and enforcement appetite by regulators in respect of health and welfare issues as the country returns to something approaching business as usual.

The HSE frequently uses targeted inspections in order to drive up standards, and this is no less so in cases involving work-related stress. It issued new guidance on stress in September 2020 which states that it will investigate if it receives “evidence that a number of staff are experiencing work-related stress or stress-related ill-health (i.e. that it is not an individual case)”. This is a significant marker that the regulator takes its duties in relation to workplace mental health seriously, and that it expects employers to do the same.

Organisations found to be at fault can expect enforcement action and, given the priority status of workplace mental health at both the HSE and beyond, it may well only be a matter of time before we see a prosecution before the UK courts.

Co-written by Phil Newton and Christopher Rees-Gay of Pinsent Masons