Employee wellbeing has risen up the corporate agenda during the pandemic.

However, this is set to become an even bigger issue in the coming months, as HR and legal teams navigate the impact of hybrid working, the right to work flexibly, the end of furlough, long Covid and more.

In this episode, we discuss:

  • The right to disconnect – what is it, how does it work, and could it work in the UK? With insights from Deirdre Lynch, partner at ByrneWallace LLP in the Republic of Ireland.
  • Gender equality – with more women planning to work from home after the pandemic than men, is backwards progress on gender equality in the workplace inevitable?

  • Remote line management – how can employers make sure they’re spotting the signs and giving the right support to line managers and employees working remotely?

  • Common themes in employment tribunal claims – including the growth of psychiatric injury claims, and the importance of early intervention and being able to show that you have taken proactive steps to support employees with their mental health and wellbeing.

We also explain how TLT is using the Mindful Business Charter to reduce unnecessary stress in the workplace and show respect for colleagues’ wellbeing.

Thanks for listening and let us know if you’re enjoying the podcast or if there’s a topic or question you’d like us to cover. You can email emplawpodcast@tltsolicitors.com or tweet us @TLT_Employment or use the hashtag #tltemploymentpodcast

 

Transcription 

Jonathan Rennie:

Hello, and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner in our Glasgow office. I'm joined today by Siobhan Fitzgerald. Siobhan is a partner in our Bristol office. And also Leeanne Armstrong, with Leeanne being a legal director in our Belfast office.

Siobhan Fitzgerald:

The Celtic vibes are strong today, Jonathan.

Leeanne Armstrong:

Yeah.

Jonathan Rennie:

They sure are.

We talked about burnout and work related stress in episode four, and we're going to be revisiting that topic today, looking at wellbeing a little bit more generally. And there are two reasons for this, two pretty obvious reasons. Firstly, well it's been our most popular episode so far, but secondly, the pandemic has created a whole new set of challenges that HR teams will need to be aware of and battle with.

Clearly, it's quite overwhelming when you start to think about how the pandemic has affected businesses and the people working in them, but wellbeing has definitely been a constant theme.

Siobhan Fitzgerald:

Yeah, I do agree with that, Jonathan. There's lots of statistics out there, but a recent survey carried out by Westfield Health, quite recently, February 2021, has found that 41% of employees have experienced mental health symptoms caused or worsened by work this year. That is a lot.

And we know that a lot of employers are looking for some sort of hybrid working arrangements going forwards – where people are going to be spending some time in the office, some of it working remotely – and we've all been advising on a lot of these policies. But I think that's going to have a really big impact on wellbeing and HR teams are starting to think about the best practice and how best to manage that.

Jonathan Rennie:

Yeah, and I know we don't have a date for it yet, but the government is expected to give workers a legal right to work flexibly as part of the new Employment Act later on this year.

Leeanne Armstrong:

And then we've also got to remember that the government's furlough scheme is also going to come to an end in September, and that's going to throw up a whole host of issues for HR teams and employers – in terms of how people are going to be feeling about reintegrating back into the workplace and the anxiety that might actually bring for some people. So there'll definitely be some additional support needed there.

Siobhan Fitzgerald:

Yeah, that's right, Leeanne. I think it's going to be quite a big thing coming back into the workplace when some people might have been out for well over a year with the furlough scheme.

And another thing to think about as well is the long COVID. I know we've all heard about that and I think it'll become a bigger issue as we progress partly out of the pandemic. But I did read that it affects about 2 million people in the UK at the moment, and you can imagine that that figure is only going to increase. So employers are going to need to make sure that they're alive to the wellbeing issues, particularly around that, as well as everything else, and supporting those employees who are having ongoing issues from suffering from COVID.

Jonathan Rennie:

Yeah, for me, I really like the word wellbeing, which is a very obvious thing to say. But there would have been a time where we more commonly talked about mental health at work, and obviously now the focus is a bit more positive on wellbeing and how we ensure that people are doing well within themselves.

Siobhan Fitzgerald:

Yes, and I think people are becoming a lot more discerning about who they work for these days with regards to wellbeing. I think it's quite high up people's agenda when they're looking at maybe moving to work for a different employer. So it's going to be quite high up the priority list for HR teams to make sure that they're attracting individuals through their wellbeing policies and procedures and their approach.

Leeanne Armstrong:

Yeah, and Siobhan, it's obviously something that should be a huge incentive to employers because there's a great risk associated with getting it wrong in terms of employees leaving, employees getting sick. And according to a survey that was run by Deloitte in 2020, employers spent nine billion pounds a year on replacing staff who lose their jobs due to mental health issues. So there's huge costs associated with it, so getting it right is...you know, there's huge incentives for employers, absolutely.

Siobhan Fitzgerald:

And obviously not to mention the legal risks involved. Sorry, I have to say that, given that we're lawyers.

Jonathan Rennie:

Well yeah, I mean, personally I think this is one of the most challenging HR issues of our time and one of the hardest to get right. It's very difficult to strike the right balance here and to know when employees are genuinely in a position of suffering and needing support and what the proportionate amount of support is that an employer's going to put into those types of cases, and certainly that occupies us in our advisory roles.

Now firstly, Leeanne, you had some really interesting news to share when we first started talking about this topic and that was about the right to disconnect, which obviously sounds fantastic.

Leeanne Armstrong:

Yeah, Jonathan. You actually mentioned in the introduction current proposals by the UK government to consider implementing a legal right to request flexible working, and actually what has happened just as of 1 April this year in the Republic of Ireland, is that they have published a code of practice on the right to disconnect. And that's part of a wider drive by the Irish government to redress the imbalance, really, between work and personal life and try and focus on the positive aspects that COVID brought in terms of working practice.

So what the right to disconnect does is it effectively gives employees the right to switch off from work. And that's regardless of whether you're working from home or you're actually in the workplace. And the motivation, as I said, is it's really just to keep those positive aspects of COVID, and this might be for some people continuing to work from home, the ability to be able to work a little bit more flexibly, maybe spreading your working hours, and just to really have more time with the family and maybe focus a little bit more on hobbies.

So the key rights that are enshrined in the code of practice in ROI are that people shouldn't have to routinely work outside of normal working hours. And I think that the focus really is that word “routinely”. And they have a right not to be penalised for refusing to work outside of normal working hours. And then also, as a workforce, you have to respect another person's decision or their right to disconnect outside of normal working hours.

Now the code is intended to be very flexible in nature, and of course across industries people's normal working hours will differ quite a bit. The idea is that employers and employees are really going to come together here to find an arrangement that works for them.

Now, failure to adhere to the code of practice, it's not an offence in the Republic of Ireland, but there can be adverse inferences drawn from it for failure to follow the guidance and the code of practice in the event that there were court proceedings.

Siobhan Fitzgerald:

It perhaps gives us a blueprint for what the UK government might be looking at. And we've talked in previous podcast episodes about what we call the work-life blur. It's great to be able to do flexible working, but does that mean therefore that you actually then don't get a break at all, because it just feels like you're always on, it's always there. There's the temptation, I suppose, that you nip out to maybe make tea, but then you just go back and check your emails again, and then you get back into it. And I suppose the concern with employees' wellbeing is that you don't get that proper break away, which can have all sorts of disadvantages as we know. I'm wondering, do we have any idea how employers in Ireland, what they think of this or how it's gone so far?

Leeanne Armstrong:

Well, it's interesting you say that, Siobhan. We actually spoke to an employment partner in a Dublin based law firm, ByrneWallace, and Deirdre Lynch about the code of practice and how it has gone down with employers. Now what she said is she believes with the passage of time, the code will assume increasing significance in proceedings that are brought by employees, and therefore employers should now take cognisance of the code and take steps to implement it within their organisations.

She went on to say that many employers regard the code as a positive step, which is really good to hear, in ensuring that the lines of demarcation between employees' professional and personal lives are split. And as you had pointed out, she's noted that has become more blurred as we've gone through successive lockdowns.

Many employers, she said, are increasingly aware that rested and rejuvenated employees are more productive employees who will deliver better business results – something that we all know already. It's just about bringing that back into focus.

Now interestingly, what she said is that in terms of actual implementation, I think there's some really good takeaway points here for employers in the UK who maybe don't necessarily have this requirement yet, but as part of good working practices are the things to consider. So what Deirdre told us in terms of implementation is that employers in ROI, they're developing a right to disconnect policy, they are developing training for managers and new recruits just to reinforce the appropriate behaviours around disconnecting from work outside normal working hours.

Siobhan Fitzgerald:

I just think there's probably lots of small steps maybe that can be taken just to think about mental health and wellbeing at work. The idea of stopping meetings five minutes before the half hour or the hour just to allow people that little break. And I'm sure many people listening to the call have had that experience where you pretty much have a day of back to back Microsoft Team or Zoom calls. And it is exhausting, isn't it? It's as much looking at your own face as anything for the entire day. But I do think that has a really big impact on your wellbeing, and whilst you can do that for a certain length of time, does that begin to then really be detrimental after a longer period?

And if we can do these little steps, like you're saying, Leeanne, perhaps through a policy that's put in place and people are adhering to it, then that might just be what makes the difference.

Leeanne Armstrong:

Yeah, and certainly Siobhan, with regard to the policy, what Deirdre had said is it's becoming really crucial in terms of making sure that both employer and employee understand what the right to disconnect means, because there could be that scope for misunderstanding about how it's to be applied, how it will impact on working practices.

I think there is an acknowledgement there that through the pandemic people were obviously working more flexibly, and certainly there was a survey run by Aviva of UK employees just recently, and it has found that there's been quite a significant number of employees who have benefited quite a lot now from working more flexibly. And that then leaves you with that difficulty around what are normal working hours, and how do you absolutely have that split between what is someone's nine to five traditionally, and then their time at home because that traditional nine to five is probably not so much there anymore.

And that's also probably one of the things that people are benefiting from as a result of COVID. So one of the big talking points, I think, for employers and employees in the months ahead will be looking at the positive takeaways in terms of all of the positive working practices, whether that be having that time to yourself in the evening, or allowing people maybe to step back and get more involved with school runs and childcare during the day, maybe commit more time to hobbies. And then they might actually want to log on a little bit in the evening.

Jonathan Rennie:

It's even a very simple thing, Leeanne, and I can say this living and working in Scotland, which is... I don't have terribly much of a difficulty working long hours in the darker months, because there's not always an option for things that I'm going to be doing outdoors. But as soon as the sun comes up (at the moment it's coming up at something like 4:30 AM) – that’s not to say I jump out of bed – but there's more options in the summer for doing things flexibly and for having that work-life balance. So lots of fascinating cultural questions, I suppose.

For me in the workplace, with the right to disconnect, I can't help but think how that works with pay decisions and promotion decisions. And if you have competition for roles, is it the case that some people think, "Well, if I exercise that right, there might be negative consequences"? And of course, employment law covers all of this for other rights: flexible working, family leave etc. But I find that quite nuanced and interesting as this develops. But it sounds like we all have a lot of enthusiasm for this, so we'll be closely keeping an eye on the Republic of Ireland. And I think there's other European countries as well, Leeanne, that have led the way in this.

Siobhan Fitzgerald:

Yeah, I think that in other countries it has been around for a longer period of time. I think in France from 2016. So it's not a new thing. It's interesting that in Germany as well, Volkswagen had this policy introduced in 2011 where their tech system stopped emails being sent to employees after a certain time in the evening, and then released them and they got sent through in the morning. So never say never. That's the sort of thing that we could think about.

Leeanne Armstrong:

Yeah, and certainly Siobhan, when you talk about France, I believe that there's actually criminal sanctions attached to failure to adhere to the right to disconnect rules there. So they're very passionate about it, and certainly a leader when it comes to looking at this.

But I do think in the months ahead, we're going to see this being a huge talking point around HR managers and just how do you actually implement it and how do you get it right for all employees. You have lots of different circumstances to navigate around.

I mean, finally, the last thing I'll say on this is that there was an interesting story in BBC News headlines a few weeks back; the trade union Prospect were actually calling for employees to be given a legally binding right to disconnect. So effectively a ban on routine calls and emails outside of working hours.

Many are questioning whether that's really feasible, and I think even for us as employment lawyers, we're thinking, "How could that work?" We navigate clients around lots of different industries and we can see how things differ across different sectors, and Peter Cheese, actually, the chief executive of the Chartered Institute of Personnel and Development, he's commented directly on this proposal. And he said, he thought it would be challenging to make the proposals work. He said the big question now is how do we create good ways of working that are good for people's wellbeing and how do you improve people's work-life balance? And that is really the golden question, isn't it? That's what we all want the answer to.

Siobhan Fitzgerald:

Maybe if any of our listeners find the answer, they can let us know and we'll interview them on the next podcast.

Jonathan Rennie:

I think earlier, Siobhan, you mentioned hybrid working – which seems to be the en vogue expression at the moment – and how that work-life blur is a threat to wellbeing because people just struggle to finish on time or they're lured back to work, or they just can't leave their work station after hours. Are there other issues that you think this creates?

Siobhan Fitzgerald:

Yeah, I think one thing we can't ignore is the potential gender equality issues here. So if we think back to the pre-pandemic world, one of the real keys to unlocking gender equality in the workplace was thought to be flexible working, and acceptance of that flexible working, home working, it's equally valid to being there visible in the office. And making sure that those who are working flexibly weren't overlooked for job opportunities or for promotion. So getting rid of what you might have heard referred to as “proximity bias”. “I'll give you the work because I can see you sitting in front of me”. And whilst of course it wasn't exclusively women pre-pandemic doing flexible working or homeworking, the statistics show that it was often the case that to support childcare commitments or other home demands, that it was women who were more likely to be at home.

Jonathan Rennie:

Yeah, and then of course with the COVID pandemic, flexible working was achieved essentially overnight.

Siobhan Fitzgerald:

I know. So that was achieved. That was great. That was like a long-term plan, and then it happened. We've talked about, obviously the pandemic has been awful and people have had terrible experiences, but there have been some positives to come out of it. And one of those, I think, is around the flexible working, which does help towards people's wellbeing, albeit that there are concerns that you have to be aware of as well. I think now everybody understands the challenges of working from home, away from colleagues, and a large majority of both men and women had to work flexibly during the lockdowns to balance work and of course homeschooling. The interesting thing now, though, will be to see how we emerge from all of this. So as we've said, many employers are developing these back to work plans.

Leeanne Armstrong:

Yeah, so really, Siobhan, for some there is no choice, and that is back to the office. That's just the nature of their job. Whereas for others, there is a choice. And I think the fear is that it will be women who will be more likely to opt for the hybrid working model, the working from home, potentially for child care reasons. And then are we back to the pre-pandemic concerns about female colleagues being overlooked? I mean, I know some people have talked about the idea that, as you said, the proximity bias, they're not in the office, they're not seen because they're at home. So yeah, I suppose there's a concern maybe that, unless this is properly managed, we could see a backward step in terms of more female involvement, especially for promotion opportunities.

Siobhan Fitzgerald:

Yeah, I think that's quite right Leanne. There's been a lot written about this fear that we could slip backwards again. A recently published study of... This was in America. There was a lot of people involved in it, I think about 30,000 respondents. And they found that women are much more likely to want to work from home going forwards than men. So 50% more. And that study also echoes the results of a survey in the UK amongst 2,300 business leaders, so again, quite a big survey. That's showing that 69% of mothers wish to work from home at least one day a week after the pandemic, but only 56% of fathers. So it does suggest that there is still going to be... More likely maybe to be a larger number of female employees based at home.

But looking on the positives, I really don't think that backwards progress is inevitable. We have made real leaps and bounds and the acceptance of flexible working, and as I said, everybody understands that. And I think the challenge for our listeners and for us at TLT, I think, is to think really carefully about the hybrid return and what steps can be taken to ensure a really inclusive, fully inclusive workforce that benefits everyone.

It could be IT solutions. I think we're all thinking about this at the minute. How can we have a successful hybrid meeting at work where people feel that, although they're not there, they're dialing in remotely, that they still feel part of the meeting in the room. And maybe just making sure people have what they need at home to be able to do their job properly.

And last but not least, making sure we really crack that remote line management, not least in line with the topic we're discussing today, to ensure that employees' mental health is supported, whether they're in the office or not.

Jonathan Rennie:

There's some amazing technology out there. I don't know if any of you have seen the hologram technology. It's a bit Star Wars, a bit Obi Wan Kenobi. But you can rematerialise in the office if that's required and that's going to be a very happy day for all of us.

Siobhan Fitzgerald:

I think my kids would like that one as well, Jonathan.

Jonathan Rennie:

So let's dig a little bit deeper into why this is such a challenging area to get right. Of course it does seem that the vaccination program is giving us a sense that some of our normal freedoms are coming back, which is fantastic. But after such a period of isolation, clearly there are anxieties out there about how we return to work, how we pick back up our friendships, and what we might be doing in our day-to-day lives in the near future. So not everybody's going to be so eager to resume their lives as they were pre-March 2020. There's a new term that I've been reading about called cave syndrome. It probably doesn't require a great amount of explanation, but did give me some cause for thought.

And it's just the very idea, as you might expect, that there will be individuals that might be a bit more apprehensive about, I suppose, coming outside of their cave, whatever that looks like, and socialising, resuming their morning commute, for example. And obviously there's a psychological impact to that. Different people may react in different ways. Some people find it easier to force themselves to get out and others might feel like they've got, I suppose, what you might call a happy cave that they're content in. What do we think about this?

Siobhan Fitzgerald:

I think you're right. I've not heard “cave syndrome” before, but I can really remember the first time that I went shopping after this current lockdown and it was really busy and it's quite a shock to have all these people around you again. I think you get used to only seeing very few people, especially for the three of us, because we have mainly been working from home, and I think it really does take all of us a bit of time to readjust.

Leeanne Armstrong:

Yeah, it's your surroundings as well, you know what I mean? Certainly in the few occasions that I have gone back into the office, not that there are lots of us in, because we are in the main working from home, but even just the sound of other people in the office can... It's something you're almost having to readjust to because every part of you has kind of got used to this familiarity of home and how home sounds. So even the sound of being around other people or those unfamiliar voices is really strange, and I certainly find that.

Jonathan Rennie:

I'm loving that, Leanne, because there's also kind of re-finding your professional voice that you realise, "Oh, I had a different voice when I was in the office as compared to being at home." So yeah, there's all sorts of things that gradually come back to our thinking when we find ourselves going back to work and certainly very challenging.

One of the things I was thinking back on was the Taylor Review into modern working practices, which came out in July 2017, and that's pretty much ancient history now. But I was looking through it and I was doing a word search for mental health and wellbeing at work. That's four years ago, approximately. And there was very little commentary on mental health at work, which shows just how quickly the world of work moves and the changes. And clearly if that report was being done now on the quality of work, you'd expect mental health to have a bigger focus.

Leeanne Armstrong:

Yeah, I think, Jonathan, it has been something that has been on the radar for many years, but unfortunately it has taken COVID to really bring it right to the top of the agenda for many employers. So whilst maybe in 2017 it wasn't something that was being discussed or that was really being considered in terms of working practice – or certainly if it was, it was quite far down the agenda – now it's prevalent and people are realising that we need to find a better balance for employees.

Siobhan Fitzgerald:

Yeah, I think that one of the things that a lot of our HR clients are telling us is that it is recognition of mental health and wellbeing as an issue at the top level that's maybe really making the difference. Before, both anecdotally and through surveys that I've looked at, I think there has been a reluctance, especially at the senior level, to share any sort of mental health concerns that people have had, because that was perceived as a sign of weakness. Whereas I think that is changing. Which I think you're right, Leeanne, the pandemic has made a difference to that.

There was some research recently by Bupa showing that really there's been this generational shift in executive attitudes to mental health. And they're putting that down to partly many of the top people having suffered themselves during the pandemic or also perhaps maybe members of their family, and they've seen it firsthand to realise, "Oh, this is something that we need to support within the workplace and address because otherwise it could cause a really big issue for us from a business perspective."

Leeanne Armstrong:

So do we think a lot of this, then, is about removing the stigma? A big part of actually dealing with this issue in the workplace is removing the stigma of mental health and actually people feeling more comfortable about talking about their issues and how they've maybe overcome them at all levels within a business?

Jonathan Rennie:

Listen, Leeanne, you're absolutely right there about the stigma. I think we all know that. We're now having healthier discussions around this subject, as the podcast episode shows. I think maybe it's difficult for managers to know what tools to deploy with staff who have these issues and to know how to go beyond that formulaic exchange of, "Are you okay?" "Yes." "Are you really okay?" And that's something that organisations are going to have to work with and perhaps develop some of the skills around, maybe having mental health or wellbeing champions and all the other options that we can discuss here.

Siobhan Fitzgerald:

Yeah, I mean, we're seeing more and more clients developing the idea of mental health champions. So people in the organisation who are maybe outside that line management chain, someone that you could actually speak to who you're not going to then have to report to the next day about something. So I think that can be really helpful and it's happening more and more.

Leeanne Armstrong:

When we think about diversity training, we think about certain protected characteristics. There's a lot of training around phrases and wording that could be taken as offensive to somebody. And I think when we snowball that idea into mental health, it's about... With a lot of mental health champions and employees and colleagues in the workplace… It's almost about starting to understand when someone says something, that might be a trigger to them wanting to talk to you about something. Or that could be something that raises concerns that maybe a line manager or a colleague thinks, "Oh, I should really pick up on that. I don't think that person's doing too well." And I suppose more focus could go into understanding more so that, maybe language that people could use that could suggest they need help.

Siobhan Fitzgerald:

And I think one of the challenges is going to be how we provide this support in the new hybrid working environment. So whilst you might sit next to someone or work alongside them, and you just get a sense that they're just not quite feeling or speaking how they normally would, and that allows you to pick up on that in a fairly natural way, I think the difficulty obviously is when someone's on the other side of a screen, or you're not seeing them very often, how are you going to have those little signals that trigger concerns about mental health?

So I think when we're talking about some hybrid working policy or tools around mental health, I think it will be equipping managers to manage people remotely. And those little calls that sometimes it's easy to let slip, but the supervision calls or the check-ins just to make sure they're alright, I think those take on increased importance when the person isn't there in front of you.

Jonathan Rennie:

Yeah, listen, it's that measurability thing. I mean, you can send out SurveyMonkeys to your staff whether they agree or disagree about certain proposals, but where you have the ability to have that human interaction to have the conversations around the subject, that's when you really get the best quality of information about how somebody's finding their working environment.

Something I was reading, which I really like, actually, is that idea that these skills used to be called soft skills. And when I say used to be called, I mean probably some people do still use that language. But I quite like the expression “human skills”, because when we contrast soft skills with hard skills, it's sometimes lending itself to that kind of idea that the soft skills aren't really professional or focused or the right approach. So I'm going to try my best to use that language of “human skills” going forward.

Siobhan Fitzgerald:

I think we lawyers, we obviously see a lot of employment tribunal claims, so where it's all gone wrong and perhaps the person then bringing a claim of constructive dismissal that they've not been supported properly, or perhaps it's including protected characteristics, but their mental health has suffered in the workplace. And a theme that goes through it is that often they'll say, "Well, I wasn't properly supported and no one asked me about that, and I was sitting at home, but no one did call." And you can almost see a theme, I think, running through these cases, that proactive line management support at the very early stage could probably have made a difference and might mean that we're not dealing with it at the employment tribunal stage. So I know it's easy and you don't want to push all responsibility onto a line manager, but I think that going forward, it is going to be a really crucial role.

Leeanne Armstrong:

Yeah, Siobhan, and I think rolling that back into the idea about stigma, I think what we want to do is try and encourage more people to talk. Because if you can get employees… And I think equally we see this in a lot of cases, employees who maybe have had a mental health condition and they haven't been able to convey it to a manager. Now there might be other signs, and then we can get into all the complexities of the law and whether there were was knowledge, etc. But outside of that, what you have is an employee who maybe hasn't felt able to articulate very well what it is that's been going on with them, or they want to put the corporate veil down, "I'm in work, I'm fine." And I think if we can remove the stigma and we can allow people to more openly talk, and as you said, Siobhan, that line managers feel free to engage in those conversations with employees, you could actually find that you overcome problems before they become issues and ultimately before they end on an employment lawyer's desk.

Siobhan Fitzgerald:

Yes. Prevention better than cure.

Leeanne Armstrong:

Well, I think since we are lawyers, we should probably take a moment to actually look at what the law says about mental health issues. So first of all, the Equality Act (and just for any listeners in Northern Ireland, we still have the old disability discrimination legislation, which is where mental health would fall if it was a disability).

So a person who is suffering from work-related stress or mental ill health, they may be disabled for the purposes of the Equality Act or disability discrimination legislation in Northern Ireland. An employer needs to bear in mind the consequences of an employee being protected by the Equality Act.

By taking steps to manage stress and mental health at work, an employer may be able to avoid an employee developing a mental impairment. Or where the employee has or develops an impairment, they can ensure that they're meeting their obligations. And of course, for many of our listeners, they'll understand that where you're dealing with a disabled employee, their duty to make reasonable adjustments would be triggered.

Siobhan Fitzgerald:

And the other thing as well as Equality Act, disability discrimination legislation, is that there are other more health and safety type laws that are applicable here as well. So an employer has a duty to see that reasonable care is taken to provide their employees with a safe place of work, safe tools to use and equipment, and a safe system of working.

And sometimes, especially if a union has been involved in supporting a claim, you see more of the health and safety type legislation beginning to creep in. So the Health and Safety at Work Act. So that's the general duty on employers to ensure the health and safety of all their employees. Then there's also the Management of Health and Safety at Work Regulations. That's your obligation to undertake risk assessments at work and make sure that that's been looked at to really try and prevent... It's called the principle of prevention. So you're trying to avoid risks where possible, and having a policy in place, which makes sure that risks don't arise where at all possible. And make sure that employees are well trained and understand the risks that they're facing in the workplace.

So there is a lot of case law around this as well that potentially even there could be personal injury claims arising out of a failure to... Especially a failure to avoid foreseeable injury to an employee's mental ill health at work. And I'd probably say, I don't know if you two have found this, but that's just beginning to creep into employment tribunal pleadings as well now, a personal injury arising perhaps out of discriminatory failure to look after someone's mental health.

Leeanne Armstrong:

Yeah, I agree, Siobhan. I think it's something that is being tagged on now to discrimination claims more and more often. And it does add that additional layer for employers to consider in terms of, as you say, what did they know? Was it foreseeable that someone was unwell or that treatment of somebody in such a way could result in actually a deterioration in someone's mental ill health?

Jonathan Rennie:

I think employers as well feel like the language changes when personal injury comes into play, because the stress and anxiety might then be determined as being psychiatric injury.

Siobhan Fitzgerald:

Yeah, and I think if I can pull one general theme out of the cases on psychiatric injury. Like you say, Jonathan, it's that where the employer really has taken positive steps to support someone, to have policies and procedures in place, to have good line management behaviors, then I think it can be difficult for an employee to succeed in that kind of claim. So all of these steps that we're talking about for our listeners to think about implementing will really help mitigate risk of any sort of claim like that.

Jonathan Rennie:

Listen, I wondered if people might want to hear a little bit about what we are doing at TLT that's helped inform some of our chat today, actually, and how we're using the Mindful Business Charter to, I suppose, encourage the best behaviours to look after our staff and to try and reduce stress in the workplace, Siobhan.

Siobhan Fitzgerald:

Yes, so the Mindful Business Charter is something that we've adopted at TLT. It goes back to what we were talking about at the beginning of this episode around the work-life blur and letting work take over. There's lots of ideas in it about your behaviours at work. So for example, pausing before you send that late email, perhaps, to a junior person in the team asking them to do something, or just respecting other people's working hours. Respecting holidays is a big one. So looking at if they're away or perhaps it's a non-working day, then you try and sort it out yourself and don't get tempted just to pick up the phone.

We've talked before about senior leadership, but we're trying to make sure that that's role-modelled by senior people within TLT, for example, just to make sure that that begins to affect the culture. It's something we're really keen to embrace at TLT to really try and make sure that we can have a positive experience and manage the wellbeing of employees.

Leeanne Armstrong:

And I think, Siobhan, it's one of those areas where, whether you're sharing your knowledge or things that have gone well with other law firms or other professional services industries, I think in general this is just about employers collectively sharing tips about how they have successfully managed this work-life balance blur to make a better working environment for employees. And I think there's so much good stuff there that we can share and learn from one another.

Siobhan Fitzgerald:

One thing that we haven't really touched on yet actually is around the return on investment for money that, for example, you might be putting towards a wellbeing budget. And there's loads we can say on that, and I won't go into much detail now, but there was a survey done fairly recently by Deloitte that found a five pound return for every one pound spent on wellbeing and health initiatives in the workplace.

It's always difficult to put a figure on these things, and some surveys have had a lot higher and some have had it a bit lower. But I think that what it does show is that when you are prepared to commit something to wellbeing and managing the health of your employees at work, that that really does make a difference, a really positive difference, and ultimately that hits the bottom line.

Leeanne Armstrong:

I think one area where employers would definitely see cost savings, Siobhan, would be returns on having to train new members of staff. And certainly if this goes well, you would expect that you would have increased employee retention rates, which would mean that you're not out of the cost of having to retrain new members of staff.

Jonathan Rennie:

And the recruitment piece as well, let's remember. There'll be millennials and Generation Z that are really looking at employers as to what their wellbeing models are and making decisions about their career options based on that.

Leeanne Armstrong:

I think we've had a lot of really interesting discussion during this podcast. And I certainly don't believe that any of us think we have the answers to all of these questions. But what we know is that we're all on this collective journey together, we can learn from one another. I think for our listeners, key takeaways: wellbeing really needs to be high up the agenda for successful businesses. It's an excellent recruitment and retention tool, and it's definitely just going to lead to a happier workforce. We need to consider devising wellbeing strategies. And touching on what Siobhan mentioned earlier in relation to the Deloitte survey, have that wellbeing budget. There are returns on them and that can be seen. And have buy-in from the top. That senior sponsorship and role modelling is key.

Jonathan Rennie:

Thanks, Leeanne, and thank you so much everybody for listening. We really enjoy putting these podcasts together and we really hope that you're enjoying them too.

If you have any feedback, we'd love to hear from you. You can email us at emplawpodcast@tltsolicitors.com, and we're very interested in any recommended topics or questions you'd like us to cover in future episodes. But listen, you can also just drop us a message if you want to say hello.

You can also rate and review us on your podcast app, and don't forget to subscribe. We're also available on Twitter @TLT_Employment, and you can find us by searching for TLT LLP on LinkedIn.

The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.

 

Date published

14 July 2021

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