Audrey Ferrie

Employers should be looking to put in place support mechanisms and creating a culture where workers feel able and equipped to take on the unique challenges that Covid-19 has created for the hospitality sector. This will also put employers in a good position in the face of an increased regulatory focus on workplace mental health by the Health and Safety Executive (HSE).

Many establishments were forced to close completely for months, with prolonged uncertainty around reopening. The toll that this will have taken on the mental health of workers cannot be underestimated and may well be exacerbated after reopening.

New requirements for staff to be able to police strict controls such as limited time slots, social distancing, restrictions on social group size and curfews, will place additional demands on them and must be included in the employer’s risk assessment, with appropriate mitigation measures put in place.

These measures could include additional training on dealing with the unique circumstances of the reopening, and the provision of support for workers struggling with the additional responsibilities required of them as they encourage customer compliance. This is especially so where customers’ alcohol consumption may impair their rational decision-making.

The HSE has emphasised the need for employers to consider “psychosocial” risk as part of the risk assessment which is undertaken to ensure a “Covid-secure” workplace - organisations with more than 50 employees are also expected to publish assessment findings on their website.

In fulfilling their general health and safety obligations, employers with five or more employees are required to undertake an assessment of the risks employees are exposed to at work and to act on it. This includes the risk of work-related stress. Employers also owe a common law duty to their employees to take reasonable care in respect of foreseeable risks of harm.

Guidance on addressing these issues is provided by the HSE in its “management standards” approach to tackling work-related stress which cover six core areas that, if not controlled, can contribute to poor mental health. Employers are not legally obliged to implement the management standards, however, doing so will be considered evidence of compliance with their legal duties.

There is likely to be a period of particular interest and enforcement appetite by regulators in respect of health and welfare issues as the country returns to something approaching business as usual.

The HSE issued new guidance on stress in September which states that it will investigate if it receives “evidence that a number of staff are experiencing work-related stress or stress-related ill-health (i.e. that it is not an individual case)”.

Organisations found to be at fault can expect enforcement action and, given the priority status of workplace mental health at both the HSE and beyond, it may well only be a matter of time before we see a prosecution before the UK courts.

Audrey Ferrie is a legal director and licensing specialist at Pinsent Masons