5 Oct 2021

It’s not just governments that are counting the cost of ill health and disability, employers are too. Pre Covid, ill health rarely appeared on the board/exco agenda for many office-based organisations, other than routine sign off of Health and Safety risk assessments/policies and the renewal of group health insurance schemes.

How the world has changed! The physical and mental health effects of the pandemic in addition to some other pre-existing trends, such as employees working to an older age, as the state retirement age increases, and more employees supporting elderly ill relations counteracting a broken care system, and more employees finding the ever-changing workplace stressful.

We believe that the prevention and management of employees’ ill health, and making appropriate budgetary provision for this, is something that should now be rising up board and management agendas.

We have therefore created an agenda setting series of three articles to look in more detail at the issues to assist HR professionals and business leaders. In this first part, we look at the current key legal obligations of employers. In part two, we look at what we see as the key ill health issues for employers over the next 12 months. Part three offers practical advice on what employers should include in a strategic action plan to help begin to tackle these challenges.

  1. What are the key legal obligations of employers?
  2. Personal injury
  3. Unfair and constructive dismissal claims
  4. Discrimination
  5. Additional consequences of non-compliance

  1. What are the key legal obligations of employers?

Employers owe a duty to take reasonable care for the health and safety of their employees. These duties are owed under the common law and in legislation (primarily the Health and Safety at Work Etc Act 1974).

Many Covid-19 laws and regulations put in place during the height of the pandemic have since been repealed.  This means that an employer’s duties towards the safety of its employees have, at least in a sense, returned to “normal”, but the expectations on employers may not have.

The overarching principle of health and safety at work is that that an employer must take reasonable care for the safety of its employees, including by providing a safe place of work, a safe system of work, safe equipment and safe staff. What is “reasonable” of course depends on the circumstances, such as the work environment, the profile of the employees and the hazards and dangers involved in the work itself. 

Breach of the common law duties to protect the health and wellbeing of employees can result in claims against an employer for compensation for injury or illness. The health and safety legislation provides for criminal penalties to be imposed on employers, directors and managers who are culpable for any breaches of the legislation.

Given the way that Covid-19 has changed how businesses operate and associated workplace norms, there is now an increased risk of claims against employers relating to employee health.  

2. Personal injury

Whilst personal injury claims against employers for Covid-related injuries is a largely uncharted area, it has emerged as a prominent concern for many companies and their insurers. 

To establish liability for pain and suffering and any long-term injuries as a result of Covid-19, an employee must not only prove a breach of duty on the part of his or her employer, but must also show that the breach made a material contribution to the injury sustained.  For employees claiming in respect of a Covid infection, it will be difficult to prove that the infection was caused by a workplace breach. This is because, on the balance of probabilities, there are many other potential settings in which an infection can be contracted.

There is less difficulty establishing causation in relation to claims brought by employees harmed by the additional pressure Covid-19 has brought about. Employers should be mindful of the fact that the adoption of varying policies and practices may lead to increased stress for employees, which in turn increases the possibility of psychological injury arising.  To bring a successful claim for psychological injury, it must be reasonably foreseeable to the employer that the stress suffered by the employee would lead to psychological injury. Even if harm is reasonably foreseeable, employers may only find themselves in breach of their duty of care to their employee if they have failed to take reasonable steps to prevent that harm from occurring.

Examples of reasonable steps that an employer could take to reduce or even absolve their liability for psychological injury claims includes:

  • Monitoring of the workload and capacity of staff members: The correlation between overworked staff and psychological injury has proven to be significant. As such, it would be sensible for employers to ensure that effective planning and work distribution takes place.
  • Regular consultations with staff members: Ensuring ongoing discussions and consultations with employees will help employers to identify when stress levels amongst employees are rising, and whether there is any risk of them suffering psychological injury as a result. 
  • Access to facilities such as mental health hotlines.
  • Access to medical insurance: The pandemic has created a backlog in the NHS, thus making it more difficult for employees to obtain effective medical treatment. Facilitating access to treatments for both physical and mental injury will help to reduce the severity of an employee’s injuries, and help prevent long-term harm being suffered.

3. Unfair and constructive dismissal claims

Employers are strongly advised to consider the growing prevalence of unfair and constructive dismissal claims being brought by employees because of the inadequate responses their employers have taken to Covid-related situations.

Employees are, for example, entitled to leave their workplace and refuse to return to it until any imminent danger (such as the risk of contracting Covid-19) has passed. It is unlawful to dismiss, make redundant, or otherwise subject an employee to any detriment for taking any of these actions in circumstances of imminent danger.

4. Discrimination

Employers are under an obligation to ensure that the decisions made in response to Covid-19 or other health risks do not, directly or indirectly, discriminate against employees who have “protected characteristics” under the Equality Act 2010.  Protected characteristics include disability, age and sex.

Employers should be alive to the fact that Covid-19 or the results of the lockdown may have resulted in a greater number of employees in the workforce meeting the definition of “disability” in the Equality Act. A disability is defined as a “physical or mental impairment” that has a “substantial and long-term adverse effect” on an employee’s ability to carry out day-to-day activities. 

It is arguable that an employee suffering from the following would be classed as having a disability:

  • Long covid: Calls have been made by the Trades Union Congress to have long covid classified as a disability. Whilst cases of long covid have been seen to typically last a number of weeks or even months, there have been instances of it lasting up to a year or longer.
  • Mental impairments: Mood disorders such as anxiety and depression have become more prevalent as a result of the isolation or demands caused by the Covid-19 pandemic (and now by the shortage and cost of essential goods and services), and potentially could have long-term adverse effects on employees. 

Employers need to be mindful of their obligation to make “reasonable adjustments” for employees with disabilities, and be aware that what is deemed as a ‘reasonable adjustment’ may have changed due to Covid-19. There has been a fundamental shift in the perception of home and flexible working arrangements due to how effectively businesses have operated under these arrangements over the past 18 months, and whilst a request to work from home may not been ‘reasonable’ in preceding years, this is likely not the case anymore.

There is also the potential that policies which, prior to the pandemic, were fit for purpose could now be considered indirectly discriminatory and difficult to justify.  For example:

  • Refusal to allow employees to continue working from home: this may disproportionately affect certain groups that are more vulnerable to Covid-19, such as elderly, disabled and pregnant individuals or employees associated with such vulnerable people.
  • Refusal to accept requests for flexible, home or part-time working: this may disproportionately affect female employees who act as the main caregivers in their households. 

Where these policies have a disproportionate impact on a particular group with a protected characteristic (such as age, sex, disability or pregnancy), the onus falls on the employer to justify them by showing that they are a “proportionate means of achieving a legitimate aim”. 

If an employer does not adjust to the new norm and to what employees expect their employers to now accommodate, then there is a serious risk of employees bringing claims.

5. Additional consequences of non-compliance

As has already been demonstrated, there are significant consequences for employers who do not comply with their health and safety obligations. In addition to the potential legal claims described above, employers should bear in mind that their non-compliance could negatively impact the following:

  • Employee relations and staff morale: unsafe working conditions and practices will inevitably lead to higher levels of anxiety and stress amongst your workforce, which in turn has been proven to decrease staff morale. Low staff morale is typically associated with low levels of productivity, high staff turnover and loss of productivity.
  • Reputation: organisations with unfair, unsafe or discriminatory practices are facing increasing scrutiny by the public, which can lead to them suffering significant reputational damage.
  • Time and cost: employers need to consider the potential cost of compensatory awards payable in the event of successful claims brought by employees, the cost of defending the claim even if an employee’s claim is not successful, and the amount of management time that will need to be dedicated to handling claims relating to health and safety. 

These risks strongly support a proactive, rather than reactive, approach by organisations when it comes to managing and preventing employee ill health.  In part two we consider some practical issues which HR professionals may face, before discussing how a strategic action plan can help to manage risk and to further the interests of both the employees and the employer.  

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.


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