As the nation continues to deal with a third lockdown, with many working from home, it is fair to say most (if not all) will have faced a number of challenging moments when it comes to their mental health and wellbeing.

The Health and Safety Executive (HSE) note that 828,000 workers suffer from work related stress, depression or anxiety. Employers have a legal duty¹ to protect their employees from such risks; with over 17.9 million working days lost per year due to work related stress, it is also a commercial necessity to do so².

The HSE defines stress as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’ and the statutory framework³ requires employers to protect employees from stress at work by doing a risk assessment and acting on it.

There is no ‘one size fits all’ approach, however, as part of the solution, the HSE have produced a set of Management Standards which, if implemented correctly, seek to help mitigate against poor health, lower productivity and increased accident and sickness rates. In addition, organisations should consider whether they need to go further – i.e. stress management workshops and free external wellbeing support.

There is no room for complacency; once these measures are in place, management should identify any procedural drift and act upon it ensuring that the systems they have designed and implemented to manage and support employee wellbeing are successful in practice.

In terms of enforcement action, in October 2019 the HSE published the below criteria where it would “consider investigating concerns”; it follows that if this (along with the usual charging criteria⁴) is met then an organisation may be liable to prosecution if:

• there is evidence that a number of staff are currently experiencing work-related stress or stress-related ill health, (i.e. that it is not an individual case), but
• the HSE is not the appropriate body to investigate concerns solely related to individual cases of bullying or harassment, but may consider this if there is evidence of a wider organisational failing, and
• the HSE would expect concerns about work-related stress to have been raised already with the employer, and for the employer to have been given sufficient time to respond accordingly.

Despite many organisations taking a creative approach with the guidance in the latter part of 2020, from March 2020 the message has been clear: work from home if you can. It is likely that this arrangement will only go to exacerbate work related stress and potentially make it trickier for organisations to spot, however, the requirement to work from home where possible will likely continue for some time.

With the rising risk of prosecution and an estimated £42-45 bn⁵ per annum in lost revenue in the UK due to mental health difficulties, it is critical organisations tackle this effectively by ensuring their safety culture extends to good governance in relation to workplace wellbeing.

If you would like advice in relation to your own regulatory matters, please do not hesitate to get in touch with Liam Green in our Regulatory and Corporate Defence Team.