First published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), June 2020
With the current state of COVID-19, many employees are in the midst of now returning to work and others who have been working at home are returning to the workplace
As the return to normal progresses, one key issue which will need to be considered by all employers is the issue of employee health and wellness. While such consideration will undoubtedly need to focus on sanitation and the prevention of infection, employers should not forget that health includes mental health. Mental health is often overlooked as the symptoms are not always as obvious as a cough or runny nose.
Employers' legal duties to employees concerning health and wellness extend to mental health. In the Court of Appeal case Minister of Education v Clemons  Bda LR 31 (Clemons), various allegations were levelled against the employer concerning the employee's health deteriorating as a result of stress and other factors from the work environment. In its ruling, the Court of Appeal confirmed a number of key principles as to the extent of an employer's duty to protect mental health:
- The key question is whether the injury to health which was attributable to stress at work (as distinct from other factors) was reasonably foreseeable.
- Unless the employer knows of some particular problem or vulnerability which the employee has, an employer is entitled to assume that the employee is up to the normal pressures of the job.
- An employee who returns to work after a period of sickness without disclosing any further issue to the employer usually implies that they believe themselves fit to return to work.
- An employer is generally not required to make searching enquires of the employee or seek permission to make further enquires of their medical advisors.
- In view of the difficulties of knowing when and why a particular person will go over the edge, from pressure to stress, and then from stress to injury to health, the indication must be plain and obvious for any reasonable employer to realise that it should do something about it.
- An employer would only be in breach of duty if it failed to take steps which were reasonable in the circumstances and an employer could only reasonably be expected to take steps that were likely to do some good.
- If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his or her health or whether to leave that employment and look for work elsewhere.
It is worth noting that even if the employee is able to show that the employer has breached its duty of care, it is still necessary for the employee to show that the particular breach caused the harm suffered. It is not enough that occupational stress caused the harm. Nonetheless, employers are well-advised to do what they can to uphold their duty of care. Employers need to also be mindful of their duties under the Human Rights Act 1981 not to discriminate against employees on the grounds of a disability, which can include a mental impairment, and to take certain steps to eliminate the effects of an employee's disability in the workplace.
There are a few key takeaways from the legal principles that will assist employers here, which we summarise as follows:
- The most important part of managing health and wellness is communication: The employers' duties concerning the health and wellness and specific employee health issues only truly engage when the employer becomes aware of the health issues. However, that is not a reason for employee to 'bury their head in the sand' - it is better to be proactive if there are clear indications of a mental health issue.
- Once an employee discloses a health condition (physical or mental), an employer should consider what steps, if any, can and/or should be taken by the employer to avoid aggravating the employee's condition and whether there are any options available to accommodate the condition.
- Employers are NOT required to take any steps that would be considered unreasonably burdensome to accommodate an employee. Reasonableness will turn on the facts in each case. However, examples of the limits of what is reasonable are where the employer would have to undertake significant expense and/or where the health issue renders the employee completely unable to carry out his/her duties without risk of aggravating their condition.
- In circumstances where an employer has no reasonable option, it is for the employee to determine whether or not they want to remain in a position that may risk aggravating their health condition.
It's not always obvious what steps have to be taken by either employer or employee in circumstances involving health and wellness, especially mental health. Any employer in circumstances engaging any of the factors discussed above should seek advice at an as early a stage as possible. The Clemons case is an example where a dispute about the impact of management decisions on an employee's health and wellness resulted in a years' long dispute that likely cost both parties tens if not hundreds of thousands of dollars in legal fees. Now is also a good time to consider reminding employees about any resources that are available to help them with any mental health concerns, such as a confidential employee assistance programme.
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.