Category: general

The impact of COVID-19 and returning to work on mental-health

In this article David Rumm considers how diversity and inclusion can play a part in shaping the ‘new normal’ as businesses move out of lockdown as an opportunity to ‘build back better’.

What should employers be doing to prevent and support mental health issues during this uncertain time?

The COVID-19 pandemic has had a significant impact in the workplace, as employers are increasingly seeing employees signed off work with ‘anxiety’ or ‘stress’. According to the Centre for Mental Health at least half a million more people in the UK may experience mental ill health as a result of COVID-19. To the employer, the costs are already known to be huge. The HSE annual statistics for 2019/20 highlight that 17.9 million days were lost due to work-related stress, depression or anxiety. Workload, lack of support and changes at work are three of the main causes of work-related stress and these are all big issues for employers. The ONS has reported that the number of adults in Great Britain experiencing depression has doubled during the COVID-19 pandemic. This article will address what legal obligations employers have in respect of employees’ mental health and what employers can do to prevent and support mental health issues during this uncertain time.

What is mental health?

As the government commissioned Stevenson Farmer report explained, the way to view mental health is that we all have it and we fluctuate between thriving, struggling and being ill and possibly off work. A mental health problem is generally defined as poor mental health which continues for a prolonged period. Common mental health conditions include depression, obsessive-compulsive disorders and bipolar.

Work can have a huge impact on mental health. Whilst on the one hand it can promote well-being, it can also trigger mental health issues. For example, workplace stress is reported to be one of the biggest causes of absence from work and it is also one of the most difficult issues to manage as an employer. It is therefore vital that, now, more than ever before, employers carefully consider their organisation’s approach to managing mental health in the workplace and take steps to prevent and respond to mental health issues.

Cause of the increase in mental health issues in the workplace during COVID-19

The increase in mental health issues is due to a variety of reasons, such as the fear of being infected by COVID-19, or getting long COVID, concerns about the health of loved ones, feelings of isolation and loneliness, new working environments creating an ‘always on’ culture without work/life boundaries, fears about job securities/financial concerns and added pressures of parents/carers having to juggle work with caring/home schooling responsibilities.

Also, with the prospect of returning to the workplace post-lockdown, symptoms of anxiety and stress may arise due to general health concerns about travelling into/being at work, uncertainty for what lies ahead and having to adapt to yet another new way of living.

Employer’s legal obligations in respect of employees’ mental health

An employer’s legal obligations in respect of mental health of the workforce can be categorised as follows:

• the employer duty of care from a health and safety perspective, and
• the employer obligations under the Equality Act 2010 not to discriminate on the grounds of disability and to make related reasonable adjustments

We discuss each one in turn below.

Employer’s duty from a health and safety perspective

So, what legal duties does an employer have from a health and safety perspective?

Employers have a legal duty so far as is reasonably practicable to ensure the health and safety of their workforce, including providing a safe place of work from a mental health and wellbeing perspective. In particular, an employer is obliged to:

• undertake a suitable and sufficient risk assessment of health and safety risks including mental health. This is a continuing duty, which means that the risk assessment must be reviewed and if there is a significant change in relevant circumstances this should be recorded
• apply the principles of prevention, eg developing a mental health policy covering the organisation of work, working conditions, and any other factors relating to the working environment that may affect workers’ mental health; and giving appropriate instructions to the workforce about how to prevent risks to mental health, and
• provide information to the workforce about any health and safety risks identified in the risk assessment. As part of this assessment, there is also an obligation on individuals to tell the employer if they reasonably consider something is a risk to their health and safety. So, it’s helpful to make sure that individuals are aware of their own obligation in that regard

A breach of health and safety is a criminal offence with potential liability for both individuals and organisations. This potentially means unlimited fines for organisations and individuals; as well as imprisonment for individuals and disqualification of directors.

Aside from the regulatory aspects of health and safety law, there is also the potential for civil liability. Claims can be made against the employer on the grounds of negligence; that they have failed in their common law duty to take reasonable care to prevent for example, work-related stress. These are often complex claims from both the claimant and the employer’s perspective and costly, even if they do not ultimately proceed.

Disability discrimination issues

Whilst a worker might already have a mental health issue that the employer is aware of, which has been exacerbated by current circumstances, in other cases, the COVID-19 environment may be a trigger for a new mental health issue. To amount to a disability, a mental health issue has to have a substantial, long-term, adverse effect on the individual’s ability to carry out normal day to day activities. There may be situations where a person is suffering from poor mental health which does not satisfy all the aspects of the definition of disability within the Equality Act 2010.

Employers should consider arranging an assessment by a mental health specialist if they are unsure whether an employee has a mental health condition, and it is essential to understand whether an employee is likely to be considered disabled for the purposes of the Equality Act 2010.

If the employee is classified as disabled, the employer’s obligations not to discriminate under the Equality Act 2010 apply, i.e. they must not victimise, harass, or directly or indirectly discriminate against an employee because of their mental health illness, or treat them unfavourably because of something arising from (or in consequence of) that disabled employee’s disability, and should make reasonable adjustments to reduce or remove the related disadvantage to the employee.

Tribunal awards for disability discrimination claims are uncapped and an employee does not need to pay a fee to bring a claim.

Preventing risks from a discrimination and health and safety perspective

So, what can employers do to mitigate employer risks from a discrimination and health and safety perspective?

Well, we recommend that employers should:

• have in place effective policies and systems to respond to any mental health concerns. This includes a mental health policy but could also include internal guidance for line managers and HR
• ensure risk assessments include mental health and reassess if/when the circumstances change
• ensure that managers are keeping in touch with the workforce and creating an open environment to discuss the demands of their job and any mental health concerns without fear of stigma or reprisals
• keep a paper trail of both proactive and reactive steps taken, for reference in case issues arise at a later date
• train managers on how to spot and escalate potential mental health issues. Early action can make a significant difference in managing a mental health issue
• make sure the workforce is aware of where to find mental health support information both within the business and via external resources. Employers may also want to consider appointing a wellbeing champion to disseminate this information in a more personable, approachable way
• remind workers to take breaks/annual leave and their responsibility to look after themselves and their own mental health as much as possible, and
• ensure there are adequate resources to dedicate time to managing the risks associated with mental health

Dealing with mental health issues that employers have not been able to prevent

Now, whilst prevention is better than cure, it is inevitable that employers will not be able to prevent all mental health issues. So, what should an employer do if they are unable to prevent a mental health issue and an employee is signed off sick because of stress or other mental health related issues? We recommend that employers should:

• keep in contact with the employee on a regular basis and update them on any key organisational communications or changes, and which steps are being taken in relation to them personally, to help reduce further stress and anxiety
• consider involving a mental health specialist rather than a non-specialised occupational health adviser
• make appropriate HR and line managers aware of what is going on once an employee has been assessed and the employer has made an informed medico-legal decision
• consider phased returns to work even where the employee is working from home and not returning to a physical workplace, and
• ensure ongoing dialogue and regular contact following the return to work. This includes reviewing performance objectives and workload, and adjusting these where necessary

Supporting the return to the workplace

As lockdown measures reduce, more employers are looking at which steps they need to take to begin to reopen workplaces. A COVID-19 risk assessment is a critical part of the return to work process, and this should consider the mental health and wellbeing of workers who wish to return, and those who remain homeworking, who may be experiencing feelings of isolation.

As well as the tips set out above which are still applicable in the return to work phase, here are some further practical tips for supporting the return to the workplace:

• Communicating with staff is key to providing support as we gradually emerge from this lockdown. It will also actively demonstrate the employer’s effort to meet its health and safety obligations, including recognition of circumstances that may provoke anxiety or stress symptoms. For example, managers should have regular check-ins with staff. Employers may also consider having a staff ‘buddy’ scheme as a method to connect staff
• Keeping staff informed on the preventative measures that are either in place or will be implemented with a view to protecting them as far as possible from the risk of infection. Employers should also inform staff about how government guidance will continue to be monitored. Keeping staff up to date can help alleviate stress and anxiety symptoms
• Providing support and recognising that each person’s circumstances may present very different challenges and triggers for stress and anxiety. Employers may need to look on a case by case basis at how best to support workers who are experiencing issues
• Be alert to changes in a person’s behaviour which could be indicative of a more significant issue from a mental health perspective. Managers should be trained on the potential signs of poor well-being and mental health, as well as how to handle a disclosure of a mental health condition. If managers become aware of a potential issue, employers should not delay and arrange for the individual to be referred, as soon as possible, ideally to a clinical specialist so as to ensure the appropriate support can be provided from the outset

If you are interested in this article and want more information either by way of an informal chat or to discuss how we can assist you or your business, please contact David Rumm on either 07899 865909 or rumm@rummlaw.co.uk or any of the team and we will be delighted to help.

How do the IR35 off-payroll working rules affect businesses in the private sector?/ Following the IR35 off-payroll working rules having hit the private sector are you up to speed on the changes?

What are the IR35 (off-payroll working rule) changes?

IR35 applies to situations where workers supply services to end clients through intermediaries (usually in the form of limited companies known as personal service companies).   The intention of IR35 is, and always has been to ensure that the workers income tax and NICs liability in these situations is broadly equivalent to that of an employee.

Originally, IR35 legislation required the intermediary providing the workers services to determine the worker’s status for tax purposes.  However, the government put in place a shift in responsibility for tax status determination to the end client, in the hope of improving compliance.  The effect of the off-payroll IR35 regime therefore, is to place the obligation to make deductions in respect of income tax and NICs onto the party that is closest in the relevant contractual chain to the personal service company, whether that party is the end client which contracts directly with the personal service company or another intervening intermediary in more complicated contractual arrangements.

This legislative change was first applied to public sector end clients in April 2017.

Since 6 April 2021, medium and large private sector entities who have a UK connection are also subject to the off-payroll rules and determining whether IR35 applies.

‘It doesn’t impact me’

The off-payroll IR35 regime applies to engagements under which:

• An individual personally performs (or is obligated to personally perform) services for an end client;
• The services are not provided pursuant to a direct contract between the individual and the end client, but under arrangements involving a third party;
• The end client is either a public authority or a medium or large private sector entity that has a UK connection;
• The circumstances are such that if the services were provided under a direct contract between the individual and the end client, the individual would be regarded as an employee or office holder of the end client for income and/or NICs purposes, and
• The intermediary (which is usually a company, but may also be a partnership or another individual) meets certain conditions.

There is an exemption for small companies.  A company will always be small in its first financial year.  Thereafter, a small company (which, for the off-payroll IR35 rules includes LLPs, unregistered companies and overseas companies) will need to satisfy at least 2 of the following 3 requirements:

• number of employees is not more than 50;
• balance sheet total is not more than £5.1m, or
• annual turnover is not more than £10.2m.

Companies within a corporate group, or a joint venture company must consider if the respective parent company and controlling joint venture entities are also small in order to attract the exemption. For unincorporated entities, turnover alone is determinative.

Companies will need to actively monitor their size in order to ensure compliance with the off-payroll IR35 regime. A company will cease to be small only if it fails to meet 2 of the 3 requirements set out above for 2 consecutive years. Furthermore, workers and any entity the client contracts with, have the right to request confirmation from the client as to whether it believes it qualifies as ‘small’ for a specific tax year.

‘But this is just a tax issue’

Unfortunately not. Whilst, where the off-payroll IR35 regime applies, it operates for income tax and NICs purposes only, the changes also pose significant employment law risks.  A key element of the off-payroll IR35 regime is the ‘notional’ or ‘hypothetical’ contract between the end client and the worker and whether this amounts to a contract of employment or the holding of an office with the end client.

Take, for example, a situation where an organisation assesses a consultant as employed where nothing has changed and that organisation has engaged that consultant on a self-employed basis for a number of years.  This outcome could allow the consultant to potentially pursue backdated claims for employment benefits.

It is therefore critical that employment law risks are managed as part of any assessment.

‘I can use CEST to determine status’

CEST is HMRC’s online employment status checker. It is an online questionnaire. CEST has been widely criticised for giving an ‘employed’ result in the vast majority of situations (despite tax tribunal rulings on identical fact patterns to the contrary).

HMRC has agreed to stand behind a CEST result, provided, of course, that they agree with how the questionnaire has been completed. Further, in a recent case, HMRC sought to resile from a CEST result. So, while CEST can be used this needs to be approached with caution.

The Status Determination Statement (“SDS”)

If the off-payroll IR35 regime applies, from 6^th April 2021 the end client is responsible for providing the worker with a status determination statement.   Notably unless and until an end client provides an SDS, the end client itself will be treated as having made the deemed direct payment and is therefore the entity responsible for operating PAYE and accounting for NICs.

Where a worker (or deemed employer) receives an SDS from an end client and disagrees with the conclusion, the worker can make representations to the end client that the SDS is incorrect.

What are the consequences of non-compliance?

Should an end client become liable to operate PAYE and account for income tax and NICs in respect of engagements it has with an individual’s intermediary it will remain primarily liable for such income tax and NICs in the event that it fails to comply with the IR35 obligations.  In addition, the end client will be liable for interest and associated penalties for such non-compliance.

How can Rumm Employment help your business manage these changes?

We have specific experience in this niche area and can assist you from determination of the rules to implementation and any considerations that may arise in between, to include:

• Considering the applicability of the off-payroll rules to your workforce;
• Developing a business strategy for dealing with the off-payroll rules including the consideration of any employment law exposure;
• Developing the required standard documentation, including relevant polices and procedures, and the Status Determination Statement;
• Reviewing off-payroll worker contracts/agency/ and employment business contracts;
• Managing communications with contractors including concerning any status disputes;
• Managing implementation and continued review of the off-payroll rules.

Please contact David Rumm on either 07899 865909 or rumm@rummlaw.co.uk or any of our team for an initial discussion and/or for more detailed advice.

The Chancellor, Rishi Sunak announced last week extension of the Job Support Scheme.

We are currently advising our employer and employee clients alike in relation to:

Rishi Sunak’s Job Support Scheme

• which employers and employees qualify?
• what are the rules of the scheme for businesses closed due to lockdown?
• what are the rules of the scheme for businesses not closed due to lockdown?
• how does it differ from the furlough scheme?
• what happens if there is not enough work for the employee?
• what if the employee cannot work due to ill health (including Covid)?

We are also advising our clients on:

• the job retention bonus
• the new criminal offence of allowing self-isolating workers to come to work
• injunctions and interim relief

Further advice is being given to our clients on:

Health & Safety Detriments / Dismissals in the time of Coronavirus

• sections 44 and 100 of the Employment Rights Act 1996
• what is meant by ‘serious’ and ‘imminent’ danger to health?
• is commuting to work covered?
• are employees entitled to be paid if staying at home under s44?
• how employers should deal with employees who refuse to come into work – the practical answer

And we have updates upon request for clients who are interested in relation to:

3 of the latest most important (in our opinion) caselaw developments:

• Constructive dismissal (Phoenix Academy Trust v Kilroy)
• Personality clash dismissals (Gallacher v Abellio Scotrail)
• Changing contract terms after a TUPE transfer (Astrea Asset Management)

As always, if you have any questions or require any further details about these issues, please reach out either Navraj (on 07876 140121 or rai@rummlaw.co.uk) or David (on 07899 865909 or rumm@rummlaw.co.uk).