‘Signs and signals’ key to employees’ mental health support

Out-Law News | 02 Mar 2021 | 2:40 pm |

Amy Hextell tells HRNews about the duty to make reasonable adjustments for employees’ mental health  

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  • Transcript

    Are you checking in regularly with your home-working employees? Are you doing enough to support their mental health? Are managers aware of those individuals with mental health concerns? These are the questions being asked in light of a new survey showing a majority of people who started working from home during the Covid-19 pandemic have experienced adverse mental health as a result. People Management reports on the poll conducted by the Royal Society for Public Health as part of their Disparity Begins at Home report which found that two-thirds of workers who shifted from the office to home during the pandemic felt less connected to their colleagues. More than half of them said they found it harder to switch off and two in five said the change had disturbed their sleep. Notably, just a third of the survey’s 700 respondents said their employer had offered them support with their mental health. 

    On the same day that People Management reported that data they also ran a legal piece - 'Are you ready to talk about mental health in the workplace?' looking at the legal responsibilities employers have when it comes to supporting employee wellbeing. We noticed the section on making reasonable adjustments is extremely thin, just a few lines, so we can expand on that because actually, when it comes mental health, this is one area that is definitely getting overlooked in our view, and that survey only reinforces that. So let's look into it further. Amy Hextell has been advising on this and she joined me by video-link from Birmingham:

    Amy Hextell: “As everybody knows, now in England in the last couple of days, we've had the Prime Minister's roadmap out of out of lockdown and out of restrictions. And I know that that similar steps are being planned in the other jurisdictions. And I think that obviously, that gives everybody a cause for optimism. But I think it's there's a danger perhaps of employers sort of focusing on that great news and putting in place plans for getting people back into the workplace and forgetting that actually, for a lot of people, there is still really a significant risk around COVID, both from a physical perspective in terms of if there were to catch COVID, the impact that might have, but in particular, and what has been in the press such a lot over the last 1012 months, around the impact on mental health. And I think that actually a lot of the talk and the optimism about, you know, returning to work and getting back to the workplace in the office, could be causing employees an awful lot of anxiety and distress, particularly those that have existing mental health conditions. So] I think that employers need to remember that they still owe those employees a duty to make adjustments which might mean, at the moment, there are adjustments that they may need at home which could, for example, be as simple as checking in with the employee regularly or putting in place certain boundaries around their working hours and things like that which might help, but also, as we move forward into the next few months, employers need to be mindful of making adjustments in terms of how they are perhaps communicating plans for coming back to work, the expectations of people coming back as well. So it might be a reasonable adjustment, for example, to perhaps phase somebody back into the workplace if, indeed, the intention is that people do come back physically to a workplace in the coming months. As I say, for those with mental health conditions, which qualify as disabilities under the Equality Act, the thought of coming back to work could be really quite anxiety-provoking and employers need to make sure that they are having those conversations but, very importantly and what often gets forgotten is, making sure that they are also documenting those and I think that that is the bit that really is critical from an employment law perspective because time and time again we see as employment lawyers perhaps claims or queries where an accusation has been made that the employer hasn't done enough and actually when we talk to the employer about it, they've done an awful lot, but not much of it is down on paper. So we've been working with employers to put in place things like 'wellness action recovery plans', or 'adjustment passports' and working through matrix-type documents which show you're working out. They're a tool that can be used to show that the employer has considered the need to make adjustments, they've had those conversations with the employee, and then a plan that everybody can agree on, and is clear, and is down on paper, is put into place to help navigate this in in the coming weeks and months."

    Joe Glavina: "A lot of managers would agree with every word you've said, I'm sure, but they'll say that's fine if we had known about the employee's mental health condition, but we simply didn't know about it – the employees didn't tell us."

    Amy Hextell: "Often employers will say to us, that actually if we had known more about somebody's disability or the difficulties that they were having, of course they would have made the reasonable adjustments that were needed and there is a defence, legally, in circumstances where an employer either doesn't know that somebody is disabled, or they don't know that something that they are requiring of the employee puts that employee at a substantial disadvantage because of their disability, there is a defence to a failure to make reasonable adjustments claim but I think employers need to be careful around that because it's not as simple as saying, well, the employee never came to me and told me and showed me a document with a diagnosis on and what they needed. The duty to make adjustments is very firmly placed on employers and employers have to be proactive in that space. The law says that it's not enough to simply say you didn't know when actually the all the signs were there. So not only is it the case that you have a duty to make adjustments where you know about disability and a disadvantage, but also where you ought reasonably to have known and that's where the concept of 'signs and signals' come into it which, I accept, is very hard for employers, particularly I think over the course of the last few months where you have perhaps had people either working at home or not everybody in one place at one time and, actually, those signs might be more subtle and more difficult to pick up when you're not seeing people regularly. But that's really why we're advocating for regular check-ins and discussions, not simply about work, but wellbeing chats with your staff to make sure that you can pick up on some of the more subtle signs and then you're sort of in that position where you've got enough information to go ahead and discuss making adjustments and it may be that you need to discuss those with HR, or even take legal advice at that early stage. But it's not an absolute excuse to say, well, the employee never came to me and, you know, it wasn't crystal clear that this person needed anything from me. The law does firmly place that that duty to be proactive on an employer."

    Finally on this subject, on 11 March we will be running an interactive online workshop on this area. It is called ‘Reasonable adjustments for mental health - remote workers'. Three 50 minute sessions running from 10am to 1pm and you can book a place from the website – we have put a link to that page in the transcript of this programme for you. We have also put a link to the CIPD's publication - 'Covid-19 Employer's Response Guide'.

    - Link to training course: ‘Reasonable adjustments for mental health - remote workers'.