Across the UK organisations are homeworking. In England, since the UK Government’s announcements on 22 September, a return to full-time homeworking could last “for perhaps six months”. In Scotland, the position has not changed since March: “where a worker can perform their work from home, they should continue to do so.”
The HSE highlighted in guidance early on during the pandemic that “home working can cause work-related stress and affect people’s mental health”. On this basis it advised employers to “put procedures in place so you can keep in direct contact with home workers so you can recognise signs of stress as early as possible.”
Realistically, what are the repercussions if an organisation fails to manage the wellbeing of their workforce? What approach are the UK health and safety regulators taking to wellbeing?
We have reported previously here on the impact of COVID-19 on mental health and the steps organisations should take to manage the risks. Since then, reports continue to pour in highlighting the detrimental impact of the pandemic on the population’s mental health. The burden on organisations to manage the impact on their staff is increasing.
A failure to manage health and safety is a criminal offence with potential liability for both individuals and organisations. This means the courts can impose unlimited fines on organisations and individuals; as well as imprisonment for individuals and disqualification of directors.
How this translates to the management of wellbeing as a matter of health and safety was illustrated earlier this year in the criminal prosecution of the railway contractor Renown Consultants Ltd, brought by UK health and safety regulator, the Office of Rail and Road.
The Renown case
Renown was convicted of three health and safety offences for failing to ensure that two workers involved in a fatal accident were sufficiently rested to work and travel safely. The trial lasted almost five weeks and resulted in a guilty verdict with a fine of £450,000 plus costs of £300,000.
The two workers were involved in a fatal car accident, thought to be caused by the driver falling asleep due to “excessive fatigue”. Renown was found to have failed to consider whether the workers were well-rested before accepting a job, and failed to carry out the required risk assessment where workers had worked in excess of 12 consecutive hours, contrary to the working time limits for safety critical work and the limits imposed by its own internal policies.
Other indications of the regulators' approach to wellbeing
The Renown case is currently a rare example of a UK safety regulator acting on an employer’s failure to manage staff wellbeing. However, it is arguably not going to be unique in that respect for long. There has been a movement towards worker wellbeing as an active concern of the regulators for some time. Before the pandemic, there were suggestions of training for HSE inspectors in stress management standards. At the end of last year the HSE published guidance on investigating concerns about work-related stress: “the HSE will consider investigating concerns about work-related stress where: there is evidence that a number of staff are currently experiencing work-related stress or stress-related ill health…”
Increased regulatory scrutiny of wellbeing and mental health has not arisen as a result of COVID-19. However, the move to homeworking has forced organisations to re-evaluate how they manage wellbeing and mental health issues. Work-related stress is a known risk of homeworking and one that organisations have a duty to manage. The principles for managing worker welfare are the same as for “typical” health and safety: carry out a suitable and sufficient risk assessment, set up safe systems of work as identified by the risk assessment and ensure those systems are implemented and followed.
Organisations need to look carefully at their wellbeing procedures and how these may need to be adapted to longer-term homeworking strategies. Employers should consider how individual cases will be managed, however also look at the wider picture – what is the organisation’s approach for managing mental health for home workers? It should be a priority.
Where once this risk may have seemed low on the regulatory scale, it is now gaining a lot of attention. There is also the ever-present risk to organisations of individuals pursuing civil claims for personal injury, where employers fail to engage with these risks. And aside from the legal risks, there is the significant wider costs to businesses of failing to manage staff wellbeing, including the impact on staff morale, employee relations and the company’s wider reputation.