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COVID-19: The employers duty of care in the new COVID-19 world

24 March 2020

As employers grapple with the sudden and unforeseen consequences of the Covid-19 pandemic, millions of their workers have been forced by government edict out of their familiar office environments into their homes. The home work space has, at least for the foreseeable future, become the new place of work.

Given the existential threat posed by the pandemic to many businesses and the sheer pace of change, it would not be a surprise if some employers have not yet focussed their minds on their ongoing duty of care to ensure the health and safety of their employees, which continues to apply, despite the unexpected change in circumstances.

Employers must not expose their employees to any unreasonable risk of injury to their physical and mental health. And this includes risks arising from unsuitable or poorly planned workspaces.

The understandable lack of pre-planning, means that many home environments are likely to be far removed from the ergonomically designed workspaces to which employees have become accustomed. This is likely to pose an immediate challenge to physical wellbeing for some workers with, for instance existing back or postural problems or those prone to repetitive strain injury who, may have little choice but to operate from an unsuitably equipped home environment.

The fact that these former office based employees are now working 100% from their homes, does not lessen the duty of care imposed upon the employer both by statute (under health and safety legislation) and as an implied term in the employment contract. The obligation is clear, in that employers must also take reasonable steps to provide a safe workplace and a safe system of work. The question then arises as to what may be said to be reasonable steps, given the very challenging environment we have all now been thrust into.

Taking reasonable steps as soon as possible to facilitate the purchase or supply of suitable desks and chairs, and to provide guidance on managing work from home, will be prudent. So too, will be reminding employees that they must take regular breaks and periods of annual leave, in which they do not continue to work.

Perhaps a greater challenge arises from responsibility for the mental wellbeing of the work force, particularly where the risk of diagnosable mental health problems occurring is greater now than at any time since the Second World War.

Whilst employers are not of course responsible for the unprecedented circumstances, they should be mindful of the impact on employees who are now also facing the challenge of working without the physical presence and support of their colleagues. The situation arguably imposes a higher obligation on employers to be vigilant regarding the mental wellbeing of their workforce.

Facing up to this, coupled with uncertainty about what the future may hold economically for millions of workers, may lead stress levels to easily spiral out of control and cause. Notwithstanding the current circumstances, there is still much that employers can and perhaps should be doing to look after the welfare of their new home-based workforce.

At a basic level it is important for managers to check in with their team members on a regular basis, both to enquire how they are getting on and to maintain a level of conduct and support. Where possible, holding weekly Skype or Zoom meetings can go a long way to reminding workers that they are still part of a team and can be morale boosting. Appropriate use of social media and WhatsApp groups designed to exchange the latest viral Covid-19 jokes may also lighten the load.

For those employers that do prioritise mental wellbeing in the work place, beyond a tick box culture, there is probably no need for some activities to cease just because employees are longer working under one roof. Regular fitness and yoga classes in the work place can still be conducted remotely via online platforms, and feedback is very positive already on these types of arrangements.

Reminding employees of the provision of 24-hour support and counselling helplines already provided is essential. Such services are important and can potentially provide an invaluable aid given that they are online and at the end of the phone 24-hours a day, making them well suited in the current crisis. There is however, no substitute for employers actively enquiring after the mental health of their workers.

All employers should remind their staff that simple measures should be put in place so that the necessary boundary between home and working life remains in place and is respected. Make sure that employees know that they are not expected to be on call 100% of the time and that they must consciously take steps to try and switch off and not become prisoners to their office email account.

There must now be greater flexibility given to exactly when work is undertaken as many workers are having to juggle their family and work commitments simultaneously. Don’t send emails late at night asking for things to be done. If this can be avoided, it would be better to interact with your home work force on the phone to ensure that staff are protected from stressed out clients and customers downloading their own anxiety. Ensure where possible that work loads are evenly spread. Having a holiday from remote working is also important and staff should be positively encouraged to book and take leave during this time even if they are not able to travel. The Working Time Regulations and the entitlement to periods of paid leave, and rest breaks on a daily and weekly basis, remain in force.

Given the new world order, all employers should not be waiting for issues to emerge before adopting active measures to avoid mental health declining. In short, all employers, whatever their shape and size should now be taking extra care in the manner in which they are treating their workers, even those who may be subject to inaction as a result of being furloughed.

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