Employers may need to consider treating those with ‘long Covid’ as if they have a disability in order to avoid falling into an unfair dismissal or discrimination claim.

How long do COVID symptoms last?

For some people, coronavirus (COVID-19) can cause symptoms that last weeks or months after the infection. This can be called ‘post-COVID-19 syndrome’, ‘long-tail COVID’ or ‘long COVID’.

Long COVID symptoms could affect someone’s ability to work or cause them to take sickness absence.

Long COVID symptoms include breathlessness, fatigue, fever, heart palpitations, joint and muscle pain, insomnia, lack of concentration as well as mental health issues such as anxiety and depression.

How is disability defined in The Equality Act 2010?

You are afforded protection by the Equality Act 2010 if you have a disability –  a ‘physical or mental impairment’ that has a ‘substantial’ (more than minor) and ‘long-term’ (lasted for 12 months or likely to last for at least 12 months) negative effect on your ability to do normal daily activities.

Will long-term COVID be covered by The Equality Act 2010?

As it is a year since the first lockdown began, it is still difficult to determine whether long-term COVID symptoms will last for 12 months or longer to meet the conditions of disability under the Equality Act. Long COVID syndrome affects people in different ways. Clearly, for some suffers, it could be having a substantial effect on their ability to carry out daily activities and capability to complete tasks at work.

Whether or not long COVID will be classified as a disability will be determined by decisions following cases in  Employment Tribunals. Reviewing a disability can be complicated as the Tribunal will have to establish whether the impairments are ‘substantial’. It is also a very slow process. Tribunal cases can take over a year to reach a stage when an Employment Judge makes a decision. Each case is different.

What should employers be doing?

As with any absence from work, there are certain actions that employers could take to make a return to work easier. If the employee is suffering from long-term effects of COVID and are worried about the return to work, it would be prudent to consider:

  • Return to work meetings is the best practice for those who’ve had long absences. In these meetings you can discuss any additional support to help someone fulfil their duties whilst still suffering from the effects of the virus
  • An employer may be able to offer counselling services for those who were seriously ill or are suffering from mental health conditions due to the alterations the virus has had on their wellbeing
  • Discussion before returning of whether any reasonable adjustments need to be made to the original duties and working hour or a phased return.
  • Regular communication and decide what to tell others about the illness.

What will happen if long COVID is classified as a disability?

If long COVID is identified as a disability, an employer may be breaking the law if they treat someone less favourably due to the impact of the continuing symptoms after contracting coronavirus.

An employee could bring a claim against an employer if, for example, there is a dismissal on the grounds of the disability or because of punctuality or performance issues related to the disability, and if the employer fails to make reasonable adjustments such as flexible hours that would make work more manageable.

Whilst we await a decision from Tribunals as to how COVID-19 long-term effects will be approached, employers should treat those sufferers with fairness and understanding, taking into consideration what actions can be made to relieve any additional stress concerned with returning to work.

 

Philip McCabe, Solicitor 4th June 2021

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