Long COVID – should employers accept that it is a disability within the meaning of the Equality Act?
What is long COVID?
It is estimated that more than one million people in the UK are suffering with the prolonged side effects of COVID. In June 2021 Office for National Statistics figures suggested that 376,000 people in the UK had reported COVID symptoms for more than a year after infection. Although the majority of people infected with COVID-19 recover within 12 weeks, employers will undoubtedly be faced with how to manage this issue in the workplace.
Does long COVID come within the Equality Act 2010?
In short, many cases will amount to a disability.
Section 6 of the Equality Act 2010 provides that a person has a ‘disability’ if they have (i) a physical or mental impairment and (ii) which has a ‘substantial’ and ‘long-term’ adverse effect on the ability to carry out normal day-to-day activities.
There is currently no Employment Tribunal ruling as to whether long COVID satisfies this definition. However it is plain to see how long COVID symptoms could amount to a physical or mental impairment that impacts an individual’s ability to carry out ‘normal day-to-day activities’. For example, an employee suffering with fatigue, breathlessness and cognitive impairment may struggle to complete day-to-day activities such as concentrating or being active and mobile.
The employee will need to show that the adverse effect on their ability to carry out normal day to day activities is ‘substantial’ and ‘long term’. But these hurdles will often not be insurmountable.
Determining the ‘substantial’ effect of long COVID will be based on the individual circumstances of the individual case and the presenting symptoms, but the bar is not set high: ‘substantial’ just means ‘more than minor or trivial’, and given the well-reported effects of long COVID many employees will have little difficulty in establishing that they meet this test.
The ‘long term’ requirement is that the substantial adverse effect has lasted, or is ‘likely’ to last, for 12 months or more. It has been well more than a year since the pandemic began, so increasing numbers of employees will be able to provide evidence that long COVID has already affected them for this period of time, or that it is ‘likely’ to: ‘likely’ just means it ‘could well happen’. As we note above, the ONS has already reported that 376,000 people as of June had experienced symptoms of long COVID for over 12 months.
Whether long COVID satisfies the disability test will be determined by Employment Tribunals looking at individual cases. However the Trades Union Congress has called for long COVID to be recognised as a disability so that individuals do not have to satisfy the Equality Act test such that long COVID is automatically recognised as a disability.
Comment
- Employees who satisfy the disability test with long COVID symptoms will be protected from disability discrimination.
- ACAS guidance says that “it is a good idea for the employer to focus on reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability”. It suggests therefore a pragmatic and cautious approach focusing more on workplace adjustments rather than arguing over whether the disability test has been satisfied.
- Possible adjustments in the workplace would be facilitating ongoing employment, a phased return to work, shorter hours, more frequent rest breaks and supporting an employee in general through the longer term consequences of the condition. Employers would be advised to keep in contact with the employee discussing their individual requirements and consider involving occupational health when considering adjustments. Additionally employers should be mindful when disciplining or dismissing employees in relation to long COVID symptoms, performance or sickness absence, that this could lead to discrimination and/or automatic unfair dismissal claims.
- We will be keeping a close eye on the TUC’s recommendations and if the TUC’s recommendations are implemented then employers will need to review their working practices to ensure that they are compliant and do not put employees with long COVID at a particular disadvantage.
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