Employers have been warned of the legal risks they may run if they fail to engage with the mental health of their remote workers during the Covid-19 pandemic.

The warning comes in a report from law firm DLA Piper on mental health in the workplace, which points out that employers have a legal duty to assess the risk of stress-related ill health arising from work activities, by carrying out a risk assessment and to take measures to control that risk.

Given the widespread use of remote working and emerging evidence that the impact of Covid-19 on mental health is and will be widespread and lasting, the report advises employers to carry out a reassessment of their mental health policies in the light of changes in work practices and the increased levels of isolation among their employees.

The law firm’s employment group in Ireland prepared the detailed report, Mental Health Matters: Managing Wellbeing in Irish Workplaces, which covers several topics including the legal aspects of stress at work and how to handle difficult scenarios.

Head of employment Ciara McLoughlin  (pictured) commented: “The pandemic has transformed our daily lives; people are trying to balance personal and professional responsibilities, with some homes doubling as workplaces as parents try to juggle childcare in between video calls. 

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“The ability to work from home, once viewed as a perk, is now a double-edged sword and there is no doubt that it is overwhelming for some. Added to this is the fact that certain individuals and households with existing problems have been deprived of their usual supports due to social distancing and the absence of protective routines or close presence of stressed family members. 

“This brought to the surface previously hidden or well-managed mental health issues. Even though the workplace looks a little different for most people, workplace wellness has never been so important.

“Our recommendation is that businesses that have not addressed workplace mental health (either recently or at all), should use this as the impetus to review and audit their strategy to ensure that it is meeting business needs.”

The report recommends being proactive and not avoiding mental health issues in the workplace, simply because they are risky or problematic or because its broad approach to mental health is one of positive management.

More generally, the report addresses issues that arise irrespective of whether workers are home-based or on site. Among the areas covered are:

• Unfair dismissal claims, for example by individuals dismissed for poor performance where mental ill health affects their work, or by those dismissed because of absence caused by a mental impairment
• Claims for constructive dismissal, for example by individuals who consider that a lack of support from their employer has created an intolerable position resulting in their resignation.
• Claims for disability discrimination by individuals who feel that they have been subjected to less favourable treatment, for example failure to promote, as a result of suffering mental ill health; or a disability discrimination claim where the employer has failed to make reasonable adjustments to facilitate an employee with a mental impairment remaining in or returning to the workplace.
• Claims for personal injury based on the laws of negligence, where an employee has suffered from work-related stress leading to a mental breakdown and permanent damage to health
• Claims under which an employer can be vicariously liable, for example, discrimination or harassment that has been committed by one employee against another in the course of employment
• HSA enforcement action where there has been a breach of duties under health and safety legislation.

The full report is available here.