At the time of writing, the Scottish Government’s advice continues to be “everyone who can work from home should work from home”.  

However, whilst restrictions continue in an effort to stop the spread of COVID-19, many people who cannot work from home have been able to return to work, usually after a period of furlough leave or business closure. The fear, uncertainty and disruptions caused by COVID-19 has led to many people suffering from anxiety in many areas of their lives; the return to the workplace being a particular area of concern for some. 

For those who have been away from the workplace for an extended period, they may have experienced some form of social isolation. The prospect of a return to the working environment whilst welcomed and exciting for some, is daunting and anxiety-provoking for others. People with pre-existing anxiety may be particularly struggling but others who have never experienced anxiety before may be now struggling for the first time due to the unprecedented nature of the times. 

Anxiety may be particularly prevalent for a number of reasons such as:

  • the social anxiety with a return to the workplace after a long period away; 
  • anxiety about the risks involved in mixing with people again whilst the virus is still around;
  • anxiety about using public transport to travel to work; 
  • anxiety related to having to wear a face covering at work; 
  • anxiety related to a loss of confidence and feeling de-skilled after having been away, particularly those who have been on furlough.

What is Anxiety?

Anxiety generally relates to feelings of unease and uncertainty which is why it is understandable that so many are suffering at the moment. More detailed information about anxiety can be found on the NHS Inform website or the Mind website.

Anxiety can come in many forms, from minor to the more severe and longer term. Employers should be aware that in certain circumstances (but not always), anxiety may meet the definition of a legal disability and if so, employers should be mindful of the employee’s protection against disability discrimination which can come in many forms, and also the legal obligation to make reasonable adjustments. This article does not intend to explore reasonable adjustments or disability discrimination given the complexity and advice should be sought at an early stage if necessary. 

There are many things that individuals and employers can do to ease any anxiety around a return to work, or indeed any further changes to working arrangements. We will provide some of these tips below.

Advice for Employees

Speak to Your Employer 

If you feel able, it is important to be open and honest with your employer about your concerns and feelings. They can discuss with you how they can help and hopefully offer suggestions which may ease the symptoms and feelings, such as a phased return; additional breaks or amended hours or tasks. 

If your employer (usually your line manager would be the first port of call) is unwilling to take your concerns seriously, you could speak to your HR department if you have one, or if necessary, escalate matters with a formal grievance but hopefully, that wouldn’t be necessary. 

Routine

Try to get to grips with your new routine. After such a long time away from the usual routine, it is no wonder that a return to work will be quite a daunting prospect. Getting into a new routine will help with the feelings of uncertainty and the loss of control. Routine will help you know what to expect each day and be more prepared. 

Coping Tactics

If you are experiencing some quite severe physical anxiety symptoms then some simple coping tactics might be helpful which you can try whilst getting ready for work or indeed when at work. See the NHS Inform or Mind websites for advice and tips.

See your GP or a professional

If after a period of time you do not feel your anxiety is getting any better or indeed is getting worse then as with any other physical or mental condition, seek professional help either from a councillor, local charity or your GP. 

Advice for Employers

Risk Assessment

Carry out a risk assessment for the return to work after a period of closure. The Scottish Government has published industry-specific guidance which contains checklists/risk assessments. Employees may be anxious and concerned for their safety when returning to the workplace so if you can be proactive and carry out an early risk assessment it will help to identify areas that may be a concern to employees and the measures in place to alleviate those risks and concerns. Importantly, this should be communicated to staff.   

Communication 

Communication with staff is key. Communicating the measures that are in place in accordance with industry-specific guidance will help to reassure staff that they are returning to a safe environment. If, in most situations, different practices or arrangements are necessary, communicating these clearly to staff will also help to ease uncertainty.  

Engage 

If, when communicating the changes to staff, questions or concerns are raised, it is advisable to engage and consult with staff. This allows the employer to answer questions, provide reassurance and often, clear up any misunderstandings. It also gives staff the opportunity to provide suggestions and creates a sense of inclusion. 

Open Door 

Have an ‘open door’ policy by which you are always available for staff to come and speak to you. Being open and prepared to speak to concerned staff about anxiety, other mental health struggles or indeed any aspects of COVID-19 will go a long way in maintaining employment relationships.  

Education 

Ensure managers, line managers and HR professionals are well educated on the mental health impact of COVID-19. 

Possible Changes 

For someone suffering from anxiety, it would be common for their GP to suggest a return to work on a phased basis, for example, returning from a period of anxiety-related sickness absence. Of course, this should be considered if a fit note is produced or if the request is a reasonable adjustment. However, this can also be considered informally at the request of the employee as long as it is achievable having regard to the nature and requirements of the business and the specific role. 

Other changes that could be made to help the employee would be arranging different working hours to avoid busy travel times; offer extra car parking where possible to avoid having to use public transport if that is a concern; considering government guidance on whether the employee would be exempt from wearing a face covering if that was a concern; or keeping the employee on furlough if they are unable to work. If anxiety prevents an employee from attending work, the employee may be signed off and may be entitled to sick pay as normal. 

Some may be able to return to ‘normal’ quicker than others so be flexible and listen. 

Refusal to Attend 

If an employee refuses to return to work due to fears about COVID-19 but is not off sick, the employer must very carefully consider the employee’s individual circumstances and their reasons, before taking any action. 

Particular attention would have to be given to the possibility of discrimination (high-risk individuals due to underlying health conditions that could potentially be disabilities, for example). If there is no discrimination angle and the public health and government advice is such that it is reasonable for the employee to be asked to return to work, it is possible that the refusal to attend could potentially be misconduct. Specifically, the refusal to follow a reasonable management instruction. If the employee is not off sick or using holiday and has been asked to attend work, any absence would also likely be an unauthorised absence and they would generally not be entitled to pay. 

If things cannot be resolved, careful consideration should be given before taking any disciplinary action as in certain circumstances, any detriment suffered by the employee related to raising a health and safety concern, such as a sanction short of dismissal, could amount to an unlawful detriment under whistleblowing legislation. Similarly, a dismissal related to raising health and safety concerns could amount to an automatically unfair dismissal under whistleblowing legislation. Unlike ‘normal’ unfair dismissal, there is no qualifying service required for this type of claim. 

Following the tips above such as communication and consultation should help to avoid this situation and in the majority of cases, matters can be resolved to enable the employee to return to work feeling safe. For example, with the explanation of the new measures, or the introduction of additional measures.  

How can we help?

If you are concerned about returning to work or are an employer with an employee concerned about returning to work, please get in touch with us at adelle@am-employment-law.co.uk and we’d be happy to help.