8 September 2022 Kloe Halls EmploymentLinks

Long Covid and disability discrimination: Employers beware

As of May 2022, an estimated 1.8 million people were suffering from the long-term effects of Covid-19. This equates to 2.8% of the population of the UK. The condition is most common in 35 to 49-year-olds and, with the number of cases increasing, we are likely to see a growing focus on its impact on the workforce.

It is important that employers understand the impact long Covid can have on their employees and also what positive obligations they, as employers have, in order to avoid the risk of claims for disability discrimination under the Equality Act 2010 (“EA 2010”) and unfair dismissal. 

What is long Covid?
Most people who contract Covid-19 experience symptoms for less than four weeks. People whose symptoms last longer experience long Covid which can take two forms:

1. Ongoing symptomatic Covid: symptoms continue for 4-12 weeks; or

2. Post Covid syndrome: symptoms continue for more than 12 weeks.

Symptoms of long Covid are wide-ranging and include:

  • extreme tiredness (fatigue);
  • problems with memory and concentration (“brain fog”);
  • shortness of breath; and
  • muscle aches.
There is currently no definitive test to diagnose long Covid or prescribed treatment. Instead, symptoms need to be managed day to day. Given the symptoms of fatigue and brain fog, it is inevitable that this will negatively impact an individual’s ability to perform at work.


Is long Covid a disability?

Under section 6 EA 2010, disability is defined as a ‘physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities’. Under the EA 2010:
 
  • ‘substantial’ is defined as anything that is ‘more than trivial or minor’;
  • ‘long-term’ is any condition which ‘has lasted for or is likely to last at least 12 months or longer’. 
In a statement in May 2022, the Equality and Human Rights Commission (“EHRC”) confirmed that while long Covid does not fall under the list of conditions listed in the EA 2010 which automatically qualify as a disability (such as cancer and multiple sclerosis), it might amount to a disability if the effects on an individual meet all of the elements of the above definition. 

In the recent case of Burke v Turning Point Scotland, the employment tribunal determined that an employee could bring a claim for disability discrimination against his employer. The tribunal held that Mr Burke’s long Covid, which included symptoms such as fatigue, headaches, an inability to concentrate and difficulty sleeping, qualified as a disability under the EA 2010. This was despite a lack of medical evidence and that his condition had not yet lasted for 12 months or longer, as the tribunal found that it was likely to last for 12 months. 

The issue facing employers
Employers are under a positive obligation to make reasonable adjustments if they know (or ought to know) that an employee has a disability. Given the risk that long Covid may amount to a disability, employers may want to consider how they can mitigate the impact on their employees and ensure a safe and productive working environment. Such measures could include:
 
  • making reasonable adjustments e.g. treating disability-related absence separately to other sickness absence;
  • flexible working e.g. changes to working hours or allowing the individual to work from home (which could help support the individual through some of the most common symptoms such as tiredness);
  • referrals to, and following recommendations from, Occupational Health, particularly as knowledge around long Covid continues to evolve; 
  • encouraging employees to come forward if they are experiencing long Covid symptoms and letting them know what other support is available by way of employee assistance programmes; and
  • if managers are aware that a member of staff has recently had Covid, be alert to the possibility of symptoms continuing after the infection has resolved and ensure that they are aware of the various symptoms of long Covid.
Burke v Turning Point Scotland may encourage others suffering from long Covid to bring claims for disability discrimination against their employers. The EHRC’s statement reiterates that cases will be determined on a case-by-case basis and will not always meet the legal test for disability. However, employers would be prudent to consider the issue of long Covid given its likely impact on their workforce. 

 

Thanks to Jas Brar for his input in writing this article.