"Lockdown Burnout" means.....?

During this period of lockdown and school and nursery closures, many staff will be juggling looking after children while working from home. But, as lockdown draws on, at what cost to the employee's wellbeing?

At this disrupted time, many businesses and their key staff are working harder than ever to give 'business as usual' service. This is being done against a backdrop of changing working practices, concerns about job security and supporting colleagues. Some working parents will be endeavouring to provide this 'business as usual' service by working early in the morning or late into the night or while actively caring for children. While for many such employees this will be simply a tiring and trying period, for others there is a real potential risk of damage to their health, physical and mental. (While this article focuses on working parents, clearly there are analogies where an employee has caring responsibilities for other adults).

Do an employer's health and safety duties change when an employee is working from home on flexible hours of their choice?

When an employee is "at work" it is important to note that this is not a reference to a specific place but instead refers to the action of performing the work for which the individual has been employed. So the health and safety duties continue no matter where or when the employee works.

Although the employee is in control of their environment when working from home and may be selecting the times when he or she works, the employer must still observe its health and safety duties. Clearly an employer cannot control an employee's homeworking arrangements during lockdown in the way it might be able to do had the homeworking arrangement been entered into in more 'normal' times, but core duties will still remain.

Although neither Jersey nor Guernsey has legislation equivalent to the EU's Working Time Directive that restricts the number of hours an employee works, in Jersey employers are obliged to ensure that their employees are observing statutory minimum rest periods. Jersey employees must be required to take at least 24 hours off in a 7 day period or 48 hours in a 14 day period, and businesses will need to ensure that they are aware of their employees' working habits and hours to ensure these rest periods are observed. There is no equivalent requirement under Guernsey law and instead employers are simply guided by their health and safety obligations.

Which core health and safety duties should an employer keep in mind?

All Channel Island employers have common law and statutory duties to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment and, most importantly in the context of this article, a safe system of working. It will be important for an employer to actively think about what 'reasonable care' it can provide to its home-working employees.

What amounts to 'reasonable care' will vary from employee to employee and the employer should consider where each individual employee might struggle. In the case of exhausted and over-exerted parents the employer should devise a way to monitor the employee's stress levels, Frequent and supportive communication, and making sure that the communication is two way, is essential. Regular team meetings or one to one meetings by video conference will help as will newsletters and update emails to make sure the employee stills feels part of the team and not alone. Consider what the priorities for that employee really are and make sure the deadlines assigned to them are realistic; it may be that to meet the employer's health and safety obligations certain non-essential work will need to be delayed until after lockdown ends. Consider if scheduled calls or video meetings are really necessary, whether they can kept short and be sensitive to the times of those calls and meetings. Consider providing extra support; increased support from a manager, buddy or mentor may help, as might debriefing sessions after completion of particular tasks. Workloads or hours could be reduced on a temporary basis but this should be with the employee's agreement. Encourage all staff to take regular breaks, take exercise and go outside. Taking leave will not only benefit the employee but also will help the employer ensure that once lockdown has ended it does not have lots of staff all wanting to take leave at the same time.

Note that in discharging these health and safety obligations the employer is not under an absolute duty but instead is held to a standard of 'reasonableness'. The employer must take sufficient steps so as to be able to demonstrate to the court that it did all that it reasonably could to fulfil its statutory duties. Different jurisdictions are taking different approaches to lockdown which will affect how little or how much an employer can do to support an employee working from home, but it is important to do the risk assessment and do what you reasonably can.

Notwithstanding data protection concerns, employers will need to carry out reasonable monitoring of their employees during this period. This may include monitoring the hours that employees are logging on, to make sure that employees are not working too much during unsociable hours or, in Jersey, during any required rest periods.

Where an employee has a disability or has known health issues, should this change things?

Where an employer is aware that an employee has an underlying health condition, relating either to mental or physical health, then this condition must be borne in mind by the employer when it discharges its health and safety duties. It is important that the employer does not treat all employees the same, regardless of health.

Where an employer is aware that an employee has a health condition and that the employee is working while looking after children, the employer should consider (a) whether the employee is now more likely to suffer harm through working and, if the answer is yes, (b) what steps it can reasonably take to reduce the risk of that harm happening. Employers should remember that they may be responsible for aggravating any underlying health condition due to the way that they manage the employee's home working arrangements.

In addition for Jersey employees, the employer should be thinking about whether reasonable adjustments required under the discrimination law should be considered if these will help the employee to continue to perform their tasks.

Does an employee have any responsibilities as regards their own health?

An employee may well be keen to display a 'business as usual' front and not disclose any distress or health issues being caused by extended exertion during lockdown. However they must take reasonable care both for their own health and safety at work and for the health and safety of those who may be affected by them. Reminding employees of their responsibilities and encouraging regular feedback on their general health and wellbeing could help bring an issue to light.

The employee must also co-operate with their employer so far as is necessary to enable the employer to comply with its health and safety obligations. Where an employer has taken reasonable steps to fulfil its health and safety duties and an employee has deliberately concealed something (for example a depressive illness or the extent to which they are struggling), a court is unlikely to be sympathetic to a claim that the employer should have done more to address that 'something'.

What if an employer has taken all reasonable steps and the employee says they are ok but their performance is far from the standard expected?

An employer can continue to expect an employee to perform their work to a reasonable standard. If, as exhaustion becomes compounded, the employee's performance drops to unsatisfactory levels then the employer may want to address this. In the present climate, doing so should be done with compassion and flexibility. Moving to a performance improvement plan is very likely to be too heavy handed, certainly in the short term. An informal and constructive conversation to discuss the situation with the employee is likely to yield better results than any formal approach. (A later article will address how to deal with issues arising from an employee's conduct while COVID-19 restrictions are in place.)

What amounts to a 'satisfactory standard' of performance must be looked at through the prism of lockdown and, while not justifying under-performance, an employer will need to be realistic as to what any employee can deliver while working from home in the current circumstances. It is also important for an employer to consider whether it has made appropriate adjustments to help the employee during this exceptional time before laying all the blame for the reduced performance at the employee's door.

Where the employer has agreed to the employee working flexible hours and that arrangement is not working out, then the employer may want to bring the flexible working hours to an end. This is likely to have substantial consequences for the employee and so discussion with the employee prior to ending the arrangements will be vital. It may be that the flexible arrangements would better be varied by a reduction in hours and a prorated reduction in pay, but the employee's agreement to this would be needed.

What if an exhausted employee refuses to stop working?

This is like the situation of an employee turning up to the office who clearly is not well enough to be there. An employer, in consideration of its health and safety duties, is entitled to require the employee not to attend 'work' (remembering that work is an act not a place). Generally in this situation an employer will ask the employee to take paid leave and arrange for a doctor to provide an opinion as to whether the employee is well enough to work or ought to be on sick leave. Despite lockdown, this path will continue to be the safest option for an employer.

What practical steps can an employer take to make sure it discharges its duties?

Essential: Review health and safety policy

A business with more than five employees is obliged to have a written statement of its general policy for the health and safety at work of its employees, bring that policy into effect and make employees aware of the policy (and any revisions). In the current climate an employer should:

  1. Undertake an assessment of the risks to employees: In the context of working parents/guardians, this should include considering the possibility of an employee pushing themselves to perform work when they are mentally or physically exhausted. As ever, the employer should document its considerations in case this is needed as evidence.
  2. Apply principles of prevention: The employer should aim to reduce or avoid risk, combatting risks at source and developing an overall coherent prevention policy. It should take into consideration technology, organisation of work, working conditions and social relationships. It should consider including appropriate instructions to employees as to steps they are to take. The results of the risk assessment and applying the principles of prevention may require an amendment to the current health and safety statement.
  3. Provide information to employees: The employer should provide comprehensive and relevant information to the employees about the risks to their health identified by the assessment and measures being implemented as a result. If the health and safety statement has been updated in light of working from home arrangements during lockdown, then this should be shared with employees, flagging up the changes.

Additional recommendations and other sources of help:

  • By using a wellbeing policy (which may go under other names) an employer can set out its approach to stress and staff wellbeing. This will give the employer a place to communicate its commitment to positive mental and physical health and to tackling work related stress. It can include a request that anyone who feels that they are suffering from work related stress or physical/mental health issues should seek help at the earliest opportunity, in the knowledge that the employer will support them. The employer must follow through on the commitments in that policy.
  • The UK's Health and Safety Executive has produced lots of advice for employers to help handle work related stress (www.hse.gov.uk).
  • ACAS in the UK has produced guidance to help employers monitor employees' health and wellbeing; see particularly its "Promoting Positive mental health at work" guidance (www.acas.org.uk). Additional advice on managing sickness, stress and mental health issues has been provided by JACS in Jersey (www.jacs.org.je) and the Employment Relations Service in Guernsey (www.gov.gg/employmentrelations).
  • An increasing number of employers have Employee Assistance Programmes which provide independent and confidential counselling services to employees round the clock.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.