20th October 2022
Is long covid a disability? Yes, says a recent employment tribunal.
While many of us have now adjusted to ‘living with Covid’, some people are still suffering long lasting effects of the virus, despite getting it weeks, months or even years ago.
In fact the ONS reported in June 2022 that around two million people in the UK are experiencing long Covid symptoms. Long Covid is defined by NICE as signs or symptoms of Covid-19 which continue for more than 12 weeks, and was ruled as a disability at the first long Covid tribunal in Scotland.
In this case the employee was dismissed due to his continued absence from work. He had experienced substantial and long-term side effects which prevented him from returning to work, and the tribunal found he was considered disabled under the Equality Act.
What is the law?
Section 6 of the Equality Act 2010 sets out the requirements a person must meet in order to be classed as disabled. They must be suffering from a mental or physical impairment, and that impairment needs to prevent them from carrying out their normal day to day activities. Long term means that it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the affected person’s life.
The decision at the tribunal does not automatically mean that every person suffering from long Covid will be classed as disabled – each case will need to be reviewed on its own facts and circumstances.
However, this shows that tribunals are willing to view long Covid as a disability and as such, you need to be aware that your employees with long Covid could have protections under the Equality Act.
Being mindful of this will help you both to best support your employees and also protect your business against disability discrimination claims. Here, follow some practical steps you can take.
Focus on reasonable adjustments
Where long Covid symptoms include breathlessness, brain fog, extreme fatigue and severe headaches, this is likely to affect an employee’s concentration and ability to work.
It is therefore important for you as an employer to consider what reasonable adjustments may be put in place to help employees do their job. This might be agreeing for them to have a phased return to work, work shorter hours or have more frequent breaks.
What is ‘reasonable’ will depend on the situation – you should carefully consider if the adjustment is practical and will support the employee.
In the first instance, you may want to talk to an occupational health professional to get advice and guidance.
Train line managers
Line managers must understand the importance of applying policies and procedures to avoid the risk of inadvertently discriminating because of long covid, whether by what they do or indeed what they don’t do.
We recommend giving training to managers on how best to handle sensitive conversations surrounding health and how to manage an employee suffering from long Covid. Ensure managers are trained on relevant policies and understand them.
These policies might include equality, diversity and inclusion (EDI) policies, disability or sickness absence policies including reasonable adjustments. You should review them to ensure they are fit for purpose, up to date and non-discriminatory.
Communicate with absent employees
If your employees are away from work for a long period of time, take a flexible, compassionate approach. We advise you maintain communication with your employee while they are absent, support them in preparing for a return to work and on an ongoing basis they return.
Take time to discuss the symptoms with the individual, any patterns they experience (are their symptoms worse at a particular time of day?) and how they feel the symptoms are impacting their ability to work. How do they want managers to communicate to the rest of the team about their condition (if at all)?
Signpost employees to wellbeing resources, counselling, and employee assistance programmes. Employees suffering from the physical symptoms of long Covid may also experience poor mental health, so they could benefit from support from mental health first-aiders or champions.
If you are an employer concerned about how to manage and support employees suffering from long Covid or if you need help to consider what would amount to reasonable adjustments, please get in touch with our employment team for further information.