World Suicide Prevention Day will take place this year on 10 September, the theme being "working together to prevent suicide". At a time where we have seen people proudly come together for the greater good, this message could not be more relevant. Indications suggest that the coronavirus pandemic is having a significant impact upon the mental health of many people in this country. The "working together" theme suggests there is a hope the impetus built up over the last four months continues to help the country fight one of the more hidden knock-on effects of the pandemic. Employers will play an important role in this fight.

There are multiple factors to consider in this context. Outside the workplace setting, the impact of the lockdown and ongoing restrictions such as social distancing and self-isolation are both important considerations. In the employment context, remote working may have led to some employees working longer hours as the boundaries between professional and personal lives are blurred. Parents may have to juggle childcare and home schooling, and an absence of face-to-face interactions have led to some, perhaps many, people feeling isolated and unsupported. There is also the uncertainty facing furloughed workers and the looming prospect of redundancies as the Coronavirus Job Retention Scheme begins to wind down. Against this backdrop, it is unsurprising that many employees are now experiencing higher levels of worry and stress, which may over time materialise into more serious medical conditions.

Statistics

 On 4 May 2020, the Office for National Statistics released a survey of "personal well-being and economic well-being covering the period October 2019 to April 2020" to understand the impact of the pandemic on this country. The survey found that "between 20 March and 30 March 2020, almost half (49.6%) of people in Great Britain reported "high" (rating 6 to 10) anxiety". This was much higher than the figure for the end of 2019 (21%) and equates to more than 25 million people aged 16 and over. The survey also found that the proportion of people reporting "low" happiness was 20.7% between 20 and 30 March. For comparison, it was only 8.4% in the period between October and December 2019.

Legal consequences for employers

Employers have a general duty to promote the health, safety and well-being of their staff, as far as reasonably practicable. This applies equally to physical and mental health. If they do not give this duty proper weight, organisations can face numerous tricky scenarios, including extended periods of absence, episodes of poor performance, and allegations of bullying and harassment. Employers should therefore ensure that they give this responsibility due regard by making regular health and safety assessments. In terms of mental health considerations, this could include risk assessments to ascertain whether their staff's workload is appropriate and whether the correct support is in place to get the employee through some of most unusual times they will have experienced in their career.

 The most obvious claim that might arise in connection with an individual's mental ill-health is a disability discrimination claim under the Equality Act 2010. Individuals are protected if their mental ill-health has a substantial, adverse and long-term effect on their ability to carry out day-to-day activities. Employers must not treat staff less favourably because of their disability or for a reason related to their disability. Employers also have a duty to make reasonable adjustments for any employee experiencing a disability under the Equality Act. Reasonable adjustments for an individual with mental health issues could include adjusting their duties, reducing their working time, phased returns to work after time off, and allowing time off for treatment and appointments.

If an employee has been dismissed by reason of capability, caused directly or indirectly by their mental ill-health, this could give rise to claims both for unfair dismissal and for disability discrimination. Capability is a potentially fair reason for dismissal. However, for an organisation to avoid liability, this must be supported (among other things) by a fair process, sufficient medical evidence and a demonstration that alternatives to dismissal have been considered. Remember also that compensation for discrimination claims is uncapped.

The other risk in these circumstances is that, if an individual has had an excessive workload or been bullied and harassed and this has caused or exacerbated their mental ill-health, they might have suffered personal injury as a result. This could expose the organisation to a potential negligence claim.

How can employers help?

As we adjust to living with the pandemic, many employees are now facing the prospect of returning to work. For some, that might mean returning from furlough. For others, that involves returning to the office after months of working from home. Employees may be worried about potential exposure to the virus, especially if they live with vulnerable family members. This in and of itself may lead to worry and potential stress. However, employers can take steps to assist with this transition and promote the well-being of staff who are returning to work. Measures that may help include the following:

• carrying out risk assessments to identify risks in the workplace and putting in place appropriate safety control measures – this is required as part of making the workplace COVID-19 Secure;
• clearly communicating with employees to address, discuss and manage any concerns as they arise. Employees may have a multitude of concerns and regular updates may go a long way to providing structure and comfort;
• giving employees an opportunity to input their own insights and suggestions as they return to work. Not only will this help employers adapt to the evolving norm, but employees may feel more engaged if they have actively participated in the process;
• holding return to work meetings to help re-integrate employees back into the workplace. Employees can also use this as an opportunity to flag any issues or concerns early on and this can take place remotely or once employees are physically back in the office;
• considering and discussing areas where employers can afford to be flexible. Where possible, it will be important to document any arrangements agreed and be consistent as to what flexibility is offered to all employees.

Acas has also released "Coronavirus and mental health at work" guidance which provides additional advice to employers on supporting and managing mental health in the workplace. We recommend HR professionals and those in charge of employee welfare read this document.