The virus is transmitted by infected people via the droplets released when sneezing and coughing, and by touching contaminated objects and surfaces.
This article has as its focus, individuals whose ability to perceive or understand risk, is impacted by a mental impairment in the context of the Covid-19 pandemic. It is also largely predicated on the mental impairment falling within the definition of ‘disability’ given in the Equality Act 2010. A reference to the definition is below.
The effect of a mental impairment that manifests in this way could be any of the following:
An inability to understand or perceive risk; or
An unsubstantiated heightened fear of risk; or
Both of the responses at 1 and 2 above without any readily discernible or predictable pattern.
These effects or responses will inevitably impact others in the workplace as well as the individual with the mental impairment.
It is putative that these individuals are worthy of attention, and the issue relevant in the context of the workplace. One important reason for this is that there are both existing, and new employment laws that protect these individuals from the social exclusion that can result from unfair dismissals and unlawful discrimination in the workplace.
The law is of course nuanced and so references to unlawful discrimination and unfair dismissal are not references to coarse and blatant acts such as name-calling, mimicking or dismissing someone because they have a mental impairment, although such acts are obviously subsumed by anti-discrimination and unfair dismissal laws.
In the workplace – possible signs of a heightened or depressed perception of risk
The manifestations of a heightened or depressed perception of risk could be very visible even though mental impairments are generally thought of as invisible. They could include physical displays of fear or even terror, a heightened fear of others sneezing or coughing, inordinately regular and protracted handwashing or at the other end of the spectrum, an apparent disregard for recommended safety measures such as social distancing, shielding, blocking coughs and sneezes, increased washing of hands and cleaning of objects and surfaces.
Other potential more subtle manifestations of a heightened perception of risk may include an ostensible lack of desire or motivation to leave one’s home; avoiding social interactions with work colleagues; being fearful of interaction in the workplace; low productivity and concentration with a preoccupation with risks to health posed by the work environment; and generally feeling insecure of one’s health and safety even where all recommended precautions have been taken to make the workplace Covid-19 secure.
Steps that can be taken as a starting point.
Measures can include steps such as below:
Employers have a legal duty to take reasonable precautions to safeguard the health and safety of those working for them. There is also a duty on employers to consult with their staff about health and safety risk assessments and risk management measures that flow from the assessment of risks.
Staff are also responsible for their own health and safety and others potentially affected by their acts or omissions.
There are health and safety laws and guidance applicable to the workplace that pre-date Covid-19. These include the Health & Safety at Work etc Act 1974 (downloadable resources) and the Management of Health and Safety at Work Regulations 1999 (and as subsequently amended)
Helpfully, there are many that are sector-specific.
There are also laws and Guidance issued as a specific response to Covid-19. See for example: The Health and Safety Executive’s (HSE’s); and the Government’s sector-specific guidance on working safely during the Covid-19 pandemic.
A breach of health and safety law carries serious criminal and civil penalties. However, these health and safety-led laws and guidance require attention for their own sake because they are designed to safeguard and protect health and life.
Employers should take particular care in their duties if they have staff with mental impairments that impact on their understanding and perception of risk.
The purpose of consultation is to hear directly from the individual to gain an understanding of the impaired perception of risk, and for guidance and viable recommendations on how to help and manage the situation.
Consultation is also an opportunity to explain and discuss your proposed Covid-19 safe measures and policy.
One-to-one consultations will also limit the advent of well-intentioned but patronising, offensive or ineffectual measures being implemented.
You can offer some flexibility in your consultation process by allowing the individual to attend the consultation meeting with a companion who is familiar to him or her, as a support.
This can include seeking guidance and recommendations on how to manage the risks this poses to the individual and others in the workplace;
This will remove or at least reduce the need for reliance on the individual’s perception of risk. Prominently situated and reasonably copious visual aids such as posters and floor-markings are an obvious example.
The possible manifestations of the impaired perception of risk must not be the subject matter of public discussion, purported banter or bullying in the workplace. A clear and robust Equal Opportunities / Anti-harassment and Bullying Policy reinforced with a Disciplinary Policy should be in place, disseminated to all staff and actively implemented including with staff training on the provisions of these policies.
Training delivered by professionals should engender understanding, patience and supportive approaches amongst work colleagues.
Employers should not be pedants concerning their policies, practices and procedures where these actually or potentially put individuals with mental impairments at a substantial disadvantage in the workplace. For example, taking disciplinary action against an individual with an impaired perception of risk because he or she takes regular and or long breaks to the washroom to wash their hands would be heavy-handed and inappropriate. This is so even if the same course of action would be taken if staff unaffected by a relevant mental impairment, took more than the normal breaks permitted for lunch, relief or to smoke.
Similarly, a mutually viable working pattern can be considered if an individual cannot arrive at work at 8:30am or 9:00am because he or she is fearful of contracting Covid-19 on busy public transport during peak times of travel. Again, it could be heavy-handed and inappropriate to take give a formal disciplinary sanction against such an individual for being late to work where the impairment is the reason for the lateness.
Medical information and health conditions are typically very private and personal matters. They are usually disclosed on a strictly need to know basis. Also, under data protection laws, a person’s health or medical condition is sensitive personal data afforded a high level of legal protection.
Mental health impairments and or their manifestations should not be disclosed or discussed with others without the concerned individual’s informed, clear, and voluntary consent. Also, permission once given is not likely to be intended as an ongoing licence for unsolicited references to or comments about the impairment or any aspect of it. For example, steer clear of disclosing this sensitive personal data to others by way of justifying or explaining a decision to treat such an individual more leniently or favourably than others.
Equality Act 2010; and Employment Rights Act 1996
The terms ‘disability’ and disabled person’ have a specific definition in the Equality Act 2010. The definition is in section 6 of the Equality Act 2010 and associated Guidance. Those who meet the definition are protected by the provisions of the anti-discrimination provisions contained in the Equality Act 2010.
Section 6 of the Equality Act 2010 provides that generally, a person has a disability if:
S/he has a physical or mental impairment, and
The impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
This definition is made up of several connected component parts, almost like an itemised list. Each component item of the list has a particular meaning and the parts are conjunctive not disjunctive. The definition can therefore be deconstructed like this (note bold headings):
The physical or mental impairment does not have to be a clinically well-recognised condition; and
Substantial, means more than minor or trivial)
Long term means, have lasted for at least 12 months, or be likely to last for at 12 months, or to last for the rest of the person’s life, or be likely to recur)
Normal day to day activities are things people normally do on a daily or regular basis and includes work-related activities.
The assessment of the person’s ability to carry out normal day to day activities is based on what s/he cannot do, or can only do with difficulty.
Sections 100(1)(d), 44(1)(d), and section 105(3) of the Employment Rights Act 1996
To date (June 2020), the government’s advice is that those who are able to work from home should be allowed to do so by their employer.
There is also law pre-dating Covid-19 that potentially means that an employee can make legal claims of unfair dismissal and/or unlawful detriment in an Employment Tribunal if, an employee is dismissed, selected for redundancy or subjected to unfavourable treatment because they: (i) leave the workplace; or (ii) refuse to attend work; or (iii) propose to leave work in circumstances of danger which he or she reasonably believed to be serious and imminent and which the employee could not reasonably be expected to avert.
These protections are found in the Employment Rights Act 1996 in sections 100(1)(d), 44(1)(d), and section 105(3) referenced above.
This legislation does not specifically name Covid-19 (or any particular circumstances of danger), but it is not difficult to imagine that Covid-19 is likely to fit the bill of representing circumstances of danger which can reasonably be believed to be serious and imminent.
Employment Tribunals apply the law to individual cases in the context of Covid-19
The R rate decreases to levels that Public Health England prescribe as safe
The lock-down is eased further in part of wholly;
The nature and extent of the compliance with Covid-19 etc HSE and government guidance on a Covid-19-safe work places (including a risk assessment, risk management measures and a Policy - all informed by consultation with staff.)
Keep an eye on guidance and law relating to those classified as permitted to be treated as off sick or absent for Covid-19 related reasons and entitled to statutory sick pay.
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