Katie Russell
Burges Salmon, Edinburgh
katie.russell@burges-salmon.com

Pip Galland
Burges Salmon, Bristol
pip.galland@burges-salmon.com

The Covid-19 pandemic has changed how we work in the UK as have employees’ expectations of what they want from their employers. With flexibility to manage work-life balance being a key differentiator for many businesses, agile working, which may include a mix of ‘in office’ and ‘from home’ working as well as fully remote models, has opened doors providing opportunities for many employees to improve how they manage their home lives alongside work. Nevertheless, although agile working has had a positive impact on many employees’ mental health, poorly managed working arrangements can lead to social isolation and adverse health consequences.

The impact of the pandemic on the workplace

Before Covid-19, the UK had seen a slow growth in the number of employees working from home, with only around five per cent of employees working mainly from home in 2019 and around 30 per cent reporting that they had never worked from home.^[1] This changed dramatically as a result of the pandemic and in particular the UK lockdowns which mandated working from home where possible. Although there is no legal entitlement to work flexibly in the UK, only a ‘right to request’, as we move out of the pandemic, an ability to work from home, where the role permits, is now taken as read by those who worked that way during the pandemic. With the recruitment market in the UK remaining tight, employers are generally accommodating this, although some are more willing than others.

Many employees enjoy the flexibility of being able to work from home, reporting better productivity and work-life balance. However, for others, social isolation has emerged as an issue due to employees working alone for long periods of time. This is particularly acute for those whose employers have chosen to close their offices entirely or to reduce their office space, so restricting ‘in office’ time. Other employers have retained agile working arrangements, removing the instruction to or incentive for employees to attend work regularly. Consequently, in-person work interactions have significantly reduced.

What is social isolation and how is it contributing to increased levels of mental ill health in the UK?

Social isolation is a term often used interchangeably with loneliness. It describes the absence of social and professional contact, and if managed poorly by businesses, can lead to ill health, poor productivity and performance concerns. It can also lead to presenteeism with employees still working (albeit remotely) despite not being well enough to do so, or increased sickness absence. Social isolation is closely linked to both anxiety and depression. Changes in appearance and behaviour such as sense of withdrawal and hopelessness, as well as poor decision-making and work output can be signs.

Burnout is described by the World Health Organization (WHO) as a syndrome ‘resulting from chronic workplace stress that has not been successfully managed’. According to a 2022 survey,^[2] 50 per cent of UK employees have experienced at least one characteristic of burnout due to lack of social interaction and of boundaries between work and home life. Almost half of these workers (46 per cent) said they have worked in recent months despite not feeling mentally well enough to perform their duties.^[3] Creating a culture where employee wellbeing is effectively managed regardless of the employee’s place of work is therefore vital to business success. Furthermore, it is essential if employers are to meet their legal obligations.

What are the legal responsibilities of a UK employer?

Contractual terms

An employer is bound by an implied contractual duty not to act in a way which undermines the relationship of trust and confidence which exists between employer and employee. That term underpins the employment relationship and could be breached if an employer fails to take appropriate steps to protect an employee’s mental wellbeing at work.

Employees can resign and bring claims for breach of contract which, if successful, will see them awarded damages based on losses.

Employees with more than two years’ service may also be able to bring a statutory claim of constructive unfair dismissal which can attract compensation of up to £93,878 or one year’s gross pay (whichever is lower).

Common law duties

Employers have a general common law duty to take such steps as are reasonably necessary to ensure the safety of their employees at work. That includes protecting employees from unnecessary risk of injury, including psychiatric injury. The duty extends to agile workers as well as to those working in the office.

Health and safety legislation

There are a variety of health and safety statutes and regulations which apply in the workplace. This legislation is largely policed and enforced by the Health and Safety Executive (HSE).

Employers with more than five employees must make written assessments of risk to which their employees are exposed at work regardless of their place of work. These risk assessments are intended to help employers communicate and manage risks employees may face.

Risk assessments should ensure that employee workspaces are suitable for working safely, whether they are at home or in the office. They should also cover the mental health risks associated with lone and agile working, such as social isolation and stress.

In addition to HSE enforcement employees who allege that the employer’s health and safety obligations have not been met may be protected under whistleblowing legislation. If they are dismissed or subjected to any disadvantages because they have made those disclosures they can bring claims for compensation. They do not need a qualifying period of service to be eligible to bring claims. They may also refuse to work in circumstances in which they reasonably believe they are in serious and imminent danger. Compensation for successful claims is unlimited and can include awards for injury to feelings.

The Equality Act 2010 (EqA)

Employees are protected from being discriminated against by reason of disability from the start of their employment. Social isolation is linked to anxiety and depression and it is possible for these conditions to amount to disabilities for the purposes of the EqA. Under the EqA a person’s ill health constitutes a disability if:

• they suffer from a mental impairment;
• the effect of that impairment is long term; and
• it has a substantial adverse impact on their ability to carry out normal day-to-day activities.

In order for obligations under the EqA to arise an employer must know (or ought to have known) that the employee has a disability. This can be difficult to determine where the impairment relates to mental health conditions.

Knowledge of an employee’s disability is attributed to the employer even if only one part of it has that knowledge. This means that if a HR adviser does not know about an employee’s disability but the line manager does, then the whole organisation may be treated as having that knowledge.

Employers are under a duty to make reasonable adjustments to an employee’s disadvantaged working conditions if they are disabled. Reasonable adjustments might include, for example, allowing time off in the working day to attend medical appointments, further training or mentoring. Employers are under a duty to consider adjustments even if they are not requested by the employee.

Compensation for successful claims of discrimination or that the employer has failed to make a reasonable adjustment can be unlimited and include awards for injury to feelings.

What can UK employers do to combat social isolation?

To mitigate the legal risks and to support employees there are practical steps employers can take.

Train line managers

Line managers should be trained. They do not need to be mental health experts but they need to know how to identify the signs of mental ill health, how to handle discussions with affected employees and how to escalate concerns to their HR team. Managers should also be aware of what support is available to employees.

Set clear expectations about working time and promote a healthy work-life balance

Since the pandemic, many employers have given employees flexibility to work around their core hours, whether that is to attend to childcare matters or as a way of promoting a better work-life balance. As a result, employee working patterns are now far more variable. For such employees who have previously had lots of structure, employers need to manage expectations clearly around where work ends and home life begins. For example, they may decide to make clear that employees are not expected to reply to emails received out of hours from colleagues who have chosen a flexible working day.

Encourage employees to maintain a routine

Employers should encourage employees who are working from home to: designate a place to work that is free of distractions; set a routine for working at home including taking regular breaks; and pack away their work things at the end of the working day so that there is a clear distinction between home life and work life.

Use technology to encourage colleagues to connect through work

Connecting with others fights social isolation. Employers should create opportunities to bring employees together virtually or face-to-face, and encourage social connections through social media or informal online or in-person meetings and get-togethers.

Obtain medical advice and consider reasonable adjustments at an early stage

The emphasis for employers should be on prevention. However, there will be times when, despite the employer’s best efforts, the impact of social isolation on an employee’s mental health means that specialist medical advice is required. Seeking occupational health advice is always recommended where an employee is on sick leave for more than a few weeks so that the employer can understand the prognosis as well as identify possible adjustments that could be made to facilitate a return to work.

Alternatively, an employee may be at work and need adjustments to enable them to remain working. There is no ‘list’ of reasonable adjustments – they need to be tailored to the individual, their medical circumstances and role. Examples of reasonable adjustments may include: increased supervision; debriefing sessions after particular tasks; access to a mental health support; and identifying opportunities for more social connections.

Since the pandemic, 81 per cent of workplaces in the UK have increased their focus on employee mental health.^[4] With agile working seemingly here to stay, it is imperative that employers continue to tackle the effects of social isolation, not only in line with their legal obligations, but also from strategic, moral and ethical standpoints. Based on what we have seen, it is the organisations which are responding to these post-pandemic mental health challenges that are the ones most likely to thrive.