The TUC has called for Long COVID to be recognised as a disability under the Equality Act 2010.
According to the NHS website, Long COVID is a condition whereby an individual, who has suffered from COVID-19, has ongoing symptoms that have lasted between 4-12 weeks after the infection has cleared. However, some individuals have reported suffering symptoms of Long COVID well beyond this time frame.
Disability under the Equality Act 2010
The Equality Act 2010 defines disability as a “physical or mental impairment…[that] has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities“. The TUC has suggested that many of those suffering from Long COVID satisfy these requirements, therefore the condition should be automatically recognised as a disability to protect individuals from discrimination in the workplace. If recognised in this way, sufferers would not need to show that their own condition satisfied all the requirements of the definition – it would be sufficient that they had Long COVID. That would mean employers would have an obligation to make reasonable adjustments and ensure no workplace policies or practices put those suffering Long COVID at a disadvantage.
At the moment, Long COVID is not recognised as a disability automatically, but could in theory, be shown to be a disability in specific cases depending on the evidence. If an employee with Long COVID could demonstrate that their condition has a substantial effect on their day-to-day activities like shopping, washing etc. and that this effect is likely to continue (or had been continuing) for a year or more, they are likely to be successful in demonstrating they are disabled for the purposes of the Equality Act 2010. However, the symptoms and effects of the condition vary greatly from person to person. Given the novel nature of Long COVID, employees may struggle to obtain clear medical evidence as to the nature and likely duration of Long COVID in their particular case.
What should employers be thinking about?
When considering an employee with Long COVID, given the uncertainty of the condition itself, we would encourage employers to act flexibly and that teams provide support with regular contact. It is also advisable for employers to keep up to date with developments regarding Long COVID to help them understand the condition and support any staff affected.
As always, if adjustments may be required, it would be beneficial to consult occupational health and perhaps the employee’s GP (if consent is provided). Professional medical opinions should assist in making decisions regarding adjustments albeit, given the novelty of the condition, opinions will vary and develop over time. Despite this, obtaining such advice will give employers greater awareness and, if the advice is followed, should stand employers in good stead should a discrimination claim arise.
Long COVID may result in long-term sickness absence, or frequent irregular absences. If Long COVID is added to the list of automatic disabilities, any absence due to the condition would be ‘disability related’, making it even more important for employers to respond in a supporting manner.
Acas has recently suggested a different approach albeit with perhaps similar outcomes and objectives. Acas recommends that employers focus on obtaining as much information as possible from the employee and health professionals when managing long-term absence and considering any reasonable adjustments that may be required. They suggest this be the priority, as opposed to attempting to determine whether, in each case, an employee with Long COVID is disabled under the Equality Act.
Acas has also encouraged employers to review the bigger picture and to consider whether any other protected characteristics may be triggered when dealing with employees suffering from Long COVID (e.g. older employees, ethnic minorities or women) as the impact of Long COVID has been found to vary considerably between such groups.
Any capability procedures and potential dismissals should therefore be approached with caution to make sure decisions are fully informed. Employers have to recognise that much about the effect of Long COVID remains unknown, which may increase the risk of discrimination claims.
We recommend speaking to a member of the PRM team at Dentons who can help guide employers through any process relating to Long COVID.
