A legal perspective: The cost of ignoring employees’ mental health

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As people in Hong Kong return to the office following the COVID-19 outbreak employers need to consider their employee’s mental health after months of working in isolation. What can employers do to manage their employee’s mental health and what are their legal considerations?

Human Resources talked exclusively to Kathryn Weaver, partner at Lewis Silkin and Allison Heiliczer, head of corporate psychology at OT&P, for their take on the issue.

From Allison Heiliczer

What are some of the mental health risks that can befall a person during a long stint (months) spent working from home?
Some people who have worked from home for a long stint may find themselves feeling disoriented. A lot of us don’t realise how much we lean on the structure of a routine and physical interactions with others for our mental well-being.

Also, some people face real stress at home – whether that’s due to domestic demands of caretaking for kids or even because of domestic and/or substance abuse – and therefore when they’re in the home environment they can feel a sense of loss.

The office structure is sometimes a physical buffer from the stress at home. I have seen some people experience depression, anxiety, PTSD, and other mental health issues due to working from home.

There are also many others navigating heavy emotions such as hopelessness, helplessness, and being overwhelmed – sometimes all three at once. I also am seeing a lot of people struggle to have a strong command of focus, and without focus, it’s difficult to be productive and, in turn, this presents a risk to one’s mental well-being as it challenges confidence.

People who have pre-existing mental health issues we are keeping a particular eye on these days – including some that employers sometimes don’t consider such as eating disorders.

Aside from the legal aspects, what can HR and other people managers do to look after the mental health of employees who have spent months cooped up at home in isolation? 
Don’t bury your heads in the sand hoping that once the storm passes so too will the mental health issues of your employees. I have seen HR staff assume this attitude – and it’s a dangerous experiment. I encourage HR to be proactive and learn the very basics of spotting risk with employees.

Also, part of being proactive means being forward thinking in terms of really offering employees the chance to start conversations on mental health. I’m encouraged to see more companies doing this and seeing the benefits not only from the perspective of helping people but also making the connection between mental well-being and performance.

“It’s critical that HR also have their own mental health support. HR people often do a tremendous job of caretaking for others yet sometimes don’t seek help themselves.”

We need to meet employees where they’re at and recognise that starting this conversation often requires a (concerted) effort and is part of the larger messaging a company sends its employees on how much they care.

And, finally, it’s critical that HR also have their own mental health support. HR people often do a tremendous job of caretaking for others yet sometimes don’t seek help themselves. I encourage companies to stay alert to the necessity of caring for all their employees, irrespective of title or salary. Long gone are the days when we can pretend that one is not part of the whole – how we treat all employees needs to be reflective of a company’s value system.

Upon return to the office after working from home for a significant period, what are some of the mental health concerns that employers should be mindful of?
I would have my eyes wide open to the mental load employees are carrying around the office having felt a sense of isolation for so long. As many people have felt stressed, anxious and depressed, employers should think about how this might affect their employer’s motivation and focus.

However, some of these same employees who faced stress at home may feel relieved to be away from some of the stress. So responding to these mental health concerns and really being mindful requires a sharp eye as there are many factors to consider.

On the flipside, some employees thrive quite well in the home setting when it comes to work, and therefore returning to the office may be the real stress for them. Again, this brings us to the need for HR to really apply (their judgement) to their employees’ experiences and needs. 

Finally, be mindful that the return to the office is a process. Employees needed to adapt to working at home, and that required a certain process and so too will adapting to the office again.

The office again also is not the office of the past, and forward-thinking HR can use this time to really assess how the company supports its employees from various angles – it’s a great opportunity to upgrade practices and be mindful of well-being. This may require individual meetings with employees and also group sessions depending on the company’s needs.

Answers from Kathryn Weaver – legal perspective

While employers are morally obliged to look after staff, what are some of the legal ramifications if they do not legally uphold their duty of care to their employees?
Employers have had to carefully consider their duty of care towards employees in Hong Kong a lot over the past year – first in respect of the impact of the political protests on the workplace and more recently in respect of COVID-19.

Allison has set out some of the mental health challenges employees can face when working from home and then when returning to work and why it is important for employers to be particularly mindful of those challenges.

“An employee who suffers stress and anxiety in the workplace due to the way in which they have been treated may decide to take sick leave, which could then continue for many months at 80% pay under statute.”

If an employer turns a blind eye to them, they may find themselves facing allegations, or even claims, of negligence, personal injury, breach of contract, breach of the Occupational Safety and Health Ordinance, disability discrimination and constructive dismissal, among others.  

Also, an employee who suffers stress and anxiety in the workplace due to the way in which they have been treated may decide to take sick leave, which could then continue for many months at 80% pay under statute (potentially more under a company sick leave policy).

You have asked specifically about what happens if an employer does not uphold its duty of care towards its employees. “Duty of care” is usually used in the context of negligence, and personal injury claims are often caused by negligence. 

Where an employer has breached its duty of care towards an employee to provide a safe and healthy work environment, for example, due to mishandling the employee’s mental health-related grievance or treating the employee detrimentally as a result of their mental health condition, and the breach causes injury to the employee (such as PTSD), the employee could bring a claim for damages against the employer. 

The amount of damages awarded will vary from case to case, but the purpose of the award is to return the employee to the position they would have been in had the employer’s breach not occurred.

What sort of legal recourse can Hong Kong employees take if they believe their employer has been negligent in handling their mental health issues (such health concerns as anxiety, loneliness) relating to COVID-19?
If an employee is concerned about the way in which their employer has handled their COVID-19-related mental health issues, they may first decide to raise a grievance or complaint internally to see if the matter can be resolved that way. 

An employee may be more inclined to consider this option where their employer has a clear grievance policy or mental health policy they can follow. If an employee does raise such a grievance, it is advisable to take it seriously, investigate it thoroughly and provide a timely response, to assist the employee and to stop the matter from escalating further.

If the matter cannot be resolved internally, the employee may decide to take a more formal route and bring one of the claims I mentioned above, namely negligence, personal injury, breach of contract, breach of the Occupational Safety and Health Ordinance, disability discrimination and constructive dismissal. 

I have already covered negligence/personal injury claims. A breach of contract claim could occur where an employer fails to follow its contractual mental health policy. This breach may not, however, actually result in any claimable losses to the employee. 

If the employee considers that the way in which the employer has mishandled their mental health issues is so bad as to amount to a repudiatory breach of their employment contract, they could resign claiming constructive dismissal and then bring a claim in the Labour Tribunal for compensation.

An employee could report their employer to the Labour Department for a breach of the Occupational Safety and Health Ordinance for failure to provide a safe and healthy place and system of work, which could lead to improvement notices and/or suspension notices being issued to the employer and also potentially fines and imprisonment. There is no financial benefit to the employee in making such a report though.

Finally, an employee could raise a complaint with the Equal Opportunities Commission and/or bring a claim in the District Court if they consider that their employer’s treatment of them amounts to disability discrimination.

More specifically, what about an employee suffering from anxiety, stress or depression in relation to COVID-19. Does the Disability Ordinance differentiate between the three?
The definition of ‘disability’ under the Disability Discrimination Ordinance (“DDO”) is very wide and includes, amongst other things, “a total or partial loss of the person’s bodily or mental functions” and “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behavior”, which presently exists, previously existed but no longer exists, may exist in the future or is imputed to a person.

It is therefore possible that an employee suffering from anxiety, stress and/or depression could claim to be protected under the DDO. There is no distinction between the three in the DDO – the test for whether it constitutes a disability is simply if it affects the employee’s thought processes, perception of reality, emotions or judgment or results in disturbed behavior. 

Employers should therefore treat employees suffering from these three conditions as a result of COVID-19 carefully, to ensure they are adhering to their duty of care towards the employees and to reduce the risk of any disability discrimination claim. 

Upon return to the office, what are the steps/precautions employers are legally obliged to take keep staff safe in relation to COVID-19, given that the pandemic is still rife in much of the world?
There is currently no employment-specific legislation enacted as a result of COVID-19 in Hong Kong. “Group gathering at a place of work for the purposes of work” is exempted from the government’s rules on social distancing. 

However, an employer must still comply with its legal obligations under the Occupational Safety and Health Ordinance, its common law duties towards its employees with regard to workplace safety and health, its obligations under the Disability Discrimination Ordinance and any contractual statements or policies it has on health and safety.

“Employers should be aware that some labour groups are pushing for COVID-19 to be classified as an occupational disease under the Employees’ Compensation Ordinance, meaning that if an employee contracts COVID-19 at work, they could bring a claim of compensation.” 

Under common law, an employer has a duty to take reasonable steps to provide a safe place of work for all employees. In addition, under section 6 of the Occupational Safety and Health Ordinance, every employer has a duty to ensure, so far as it is reasonably practicable, the health and safety at work of all the employees.

Some steps an employer may consider taking to satisfy its common law and statutory duties include implementing temperature checks on entry to the office, distancing employees’ workspaces by 1.5 meters, providing hand sanitizers and masks in the workplace, regularly disinfecting the office, imposing travel restrictions, and requiring any employee displaying symptoms of COVID-19, or who has been in contact with someone with COVID-19, to remain at home.

Employers should also encourage employees to be forthcoming about any mental health challenging they are going through on their return to the office, and offer support (directly, through their healthcare provider or their Employee Assistance Programme) to the affected employee to assist with the transition.

Finally, employers should be aware that some labour groups in Hong Kong are pushing for COVID-19 to be classified as an occupational disease under the Employees’ Compensation Ordinance (“ECO”), which would mean that if an employee contracts COVID-19 at work, they could bring a claim for compensation under the ECO. So watch this space!