Conduct and PerformanceGeneralWork Health and Safety

COVID-19, Working from Home, Mental Health Challenges and the Office Christmas Party!

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As we have covered in previous client alerts, the COVID-19 pandemic has created a raft of unique challenges for employers striving to maintain safety, efficiency and productivity, and employees who, perhaps for the first time in their working lives, are now consistently working from home. For many of these employees, feelings of social isolation have led to reports of anxiety and depression, and with the Silly Season just around the corner, this means some serious red flags for employers. In this client alert we examine some of the current difficulties, and projected difficulties that COVID-19, will have on employees, and how best employers might deal with them.

Social Isolation

According to a recent survey conducted by the Royal Melbourne Hospital, half the healthcare workers surveyed are feeling “burnt out” and wanting to leave their profession due to the overwhelming volume of issues they are being called on to deal with due to community mental health complaints caused by COVID-19 and from workers working from home. Remote working, whilst it might at first have sounded convenient insofar as employees could ‘pop a load of washing in the machine’ or ‘run the kids up and back from school with minimal disruption to their work day’, are now experiencing a raft of new and unique difficulties.

For example, employees are reporting:

· feeling isolated, lonely, or disconnected from their colleagues;

· being unable to ‘switch off from work’;

· reduced boundaries between work and personal life;

· having difficulty staying motivated;

· having difficulty prioritising workload;

· feeling uncertain about personal productivity and whether they are performing according to expectations;

· feeling guilty about not performing work or family duties as effectively; and

· insomnia and sleeping problems.

These issues can manifest for simple reasons such as a misunderstood email communications or exclusion from a particular virtual meeting. These difficulties are exacerbated by the inability for employees to readily discuss their grievances with their colleagues, so they end up ‘stewing in their own juices’. In turn, this can lead to claims of workplace bullying, taking time off on account of feeling stress and anxiety and general performance issues, all of which combine to reduce an employer’s overall productivity. More concerning however is the very real effect this may be having on the mental health of employees.

Employers have a duty to ensure that they provide a safe system of work and that employees are not subjected to the risk of mental health concerns because of the way they work. On top of this obligation, employers need to be cognisant that most people are struggling in some way with the consequences of the pandemic. As such, it is reasonable to expect that the level of underlying mental health issues is far greater now and can easily be exacerbated by a poor work environment or other work stressors. Employers really need to be taking careful consideration of these unseen matters and at least making reasonable efforts to ensure they have considered the matters that may increase the risk of mental health concerns for their employees and put in place mechanisms to address this if possible.

It is fairly assured that we will see a dramatic increase in litigation by employees against their employers both in the workers compensation arena and for breach of employers’ work health and safety obligations as a result of mental health claims. Responsible employers who wish to ensure they do not have to deal

with such litigation and want to ensure increased sustained productivity are well advised to pay special attention to their employees emotional and mental wellbeing.

Given the current time of year, most organisations would historically have been planning Christmas functions. These functions were an important part of the employer’s ability to say thank you to its employees and give employees a social environment to enjoy themselves and interact with colleagues in a far more relaxed context. It was an opportunity to increase company moral and reinforce the organisations culture. However, for the most part, this year these types of gatherings will not be possible. So how can businesses address this gap, given the ever-increasing need for this type of social interaction?

Virtual Christmas Parties

In years gone by, the office Christmas party was a welcome opportunity for employees to let off steam and celebrate the end of the year in the company of their colleagues. Of course, that set the scene for overindulgence and inappropriate workplace behaviour which, for some employers and employees, made for some very difficult conversations upon returning to work.

This year, due to restrictions on numbers at various venues and some offices still not catering for a full return of their employees, virtual Christmas parties will become a new norm whereby work colleagues will get together through the use of technology such as Zoom. Rather than supplying a controlled amount of alcohol at a planned and regulated office function, employers may send a small selection of alcoholic beverages to their employees by mail/courier.

Whilst it is highly impractical to send an excessive amount of alcohol by courier to be enjoyed by employees at the virtual office party, employers have no means of controlling the quantity of alcohol consumed by individuals, as they may well ‘stock up’ in their homes. This may result in some employees, within an employer sponsored virtual party environment, becoming heavily intoxicated. Not only does this create an unsafe situation, but, when coupled with some employees’ enduring feelings of anxiety, social isolation, disconnection and, in some cases, feeling as though they have been the subject of bullying, intoxication could result in serious inappropriate workplace behaviour. Where an employee has felt disenfranchised for an extended period, is in the comfort of their own home and whose normal inhibitions are depressed by alcohol, the potential for outbursts of offensive and unacceptable behaviour is omnipresent.

To mitigate this risk, it behoves employers to educate staff as to what constitutes acceptable behaviour, and what kinds of conduct may give rise to disciplinary action. To this end, it is important that employers implement control measures, so their staff understand what behaviours are acceptable in the context of an event organised by the company, even if it is being conducted virtually and not during ordinary business hours.

Examples of recommended control measures include:

1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and in particular before virtual Christmas parties;

2. consulting with staff in relation to your expectations of their behaviour at virtual Christmas parties;

3. providing training to employees on their obligations under various legislation, including in respect of work, health and safety; and

4. providing access to counselling and an EAP services provider.

Furthermore, it should be agreed prior to the commencement of the virtual event that an ‘event moderator’ will be in place and, at the first sign of inappropriate comments or behaviour, employees will be dismissed from the virtual event (by being disconnected from the Zoom meeting).

Finally, as is the case at in-person functions, employers should be cognisant of employees looking to ‘kick-on’ at the conclusion of the virtual event. Whilst this is less likely where employees commenced the function from the comfort and safety of their own homes, the potential exists that some employees, who may have overindulged, see fit to want to meet with some of their colleagues at a venue and continue the festivities.

It is almost impossible for an employer to prevent this if an employee, or group of employees, are so inclined; however, to mitigate the risk, an employer should seek to have pre-emptive conversations with their employees prior to the virtual function, including the risks to their employment should they engage in drink driving, let alone theirs and others’ safety, and that any unsavoury incidents that might occur between work colleagues, even after the conclusion of the virtual event, may have ramifications when they return to work.

Whilst work functions are a great opportunity to have fun with colleagues, our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable has been done to ensure all employees are safe and without risk of being subjected to offensive behaviour. This is particularly poignant this year for employees who might be suffering from mental health issues caused by prolonged COVID-19 isolation. A ‘steady hand’ is required.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

This alert is not intended to constitute, and should not be treated as, legal advice.

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