Could Long Covid be a disability under the Equality Act 2010?

Though the majority of people who have been infected with Covid-19 fully recover within twelve weeks, some individuals have reported experiencing Covid-like symptoms for much longer. These people may be suffering from Post-Covid syndrome, or ‘Long Covid’ and it can affect their ability to return to work or perform their duties effectively.  Employers may be wondering about the practical implications of Long Covid in the workplace and whether an employee with Long Covid qualifies as disabled under the Equality Act 2010.  Our Employment Law team discuss this possibility here, explaining the symptoms of Long Covid, the criteria that needs to be met to qualify as a disability and practical steps that employers can be taking now.  

What is Long Covid?

‘Long Covid’ is defined by the National Institute for Health and Care Excellence as “signs and symptoms that develop during or following an infection consistent with COVID-19 which continue for more than twelve weeks and are not explained by an alternative diagnosis.”  Symptoms of Long Covid which individuals may experience include:

• fatigue
• trouble breathing
• dizziness
• high temperature
• headaches
• changes to sense of taste or smell

Health experts are unsure how long these post-Covid symptoms can be expected to last and in some cases the symptoms can come and go quite suddenly.

Does Long Covid meet the definition of a disability under the Equality Act?

Unfortunately, there is no clear answer to this question and the issue will likely need to be decided by an Employment Tribunal. However, it is not unreasonable to believe that in some cases Long Covid could meet the statutory definition of a disability.

‘Disability’ is defined by section 6 of the Equality Act 2010.  According to the Act, a person with Long Covid will be considered disabled if they can demonstrate the following:

• that Long Covid is a physical or mental impairment which adversely affects their ability to carry out normal day-to-day activities;
• the adverse effect is substantial; and
• the adverse effect is long term.

A person suffering from symptoms of Long Covid will likely be able to show that they have a physical impairment that impacts their ability to carry out day-to-day activities.  Whether the impairment is ‘substantial’ will depend on the individual’s circumstances and the severity of their symptoms.  More extreme cases, such as a person not being able to get out of bed due to Long Covid symptoms, are more likely to meet this requirement.

An impairment will be considered ‘long term’ if is has lasted or is likely to last at least twelve months.  Health experts are unsure exactly how long the effects of Covid-19 are expected to last so this will depend on the individual’s circumstances and the judgement of the tribunal.  Someone who, for example, has been suffering from Long Covid symptoms six months after they recovered from their initial Covid-19 infection may find it easier to convince a tribunal their impairment is long term.

What should employers do now?

You should be cautious in taking action against any employee suffering from Long Covid, being mindful of the fact that such employees may be disabled and therefore protected under the Equality Act 2010.  An employee who suffers from Long Covid should not be treated less favourably than any other employee as this could amount to discrimination under section 15 of the Act.

You should also consider whether there are reasonable adjustments you could make to alleviate any disadvantages experienced by an employee with Long Covid.  Reasonable adjustments will depend on your workplace and the employee’s specific symptoms but may include reducing their hours, giving them alternative tasks, or allowing the employee to work from home.  Referring an employee to Occupational Health may help you better understand their illness and identify suitable adjustments.

Where Long Covid causes employees to be absent for long periods or frequent intermittent periods, employers may consider placing the affected employee on furlough.  It should be noted that while you can furlough an employee for business reasons while they are off sick, the Government guidance also states that furlough should not be used to cover short-term absences.  Therefore, furlough leave may not assist with Long Covid as much as employers would like.  Instead, you should treat employee absences in accordance with your sickness absence management policy and discuss with the employee any adjustments that would help them return to work.

If you have made reasonable adjustments and the employee is still unable to return to work you may be able to dismiss on grounds of capability.  Again, you should be cautious and ensure you follow a proper procedure.  Before making the decision to dismiss you should obtain medical evidence, meet with the employee to discuss their condition and warn the employee of the possibility of dismissal. You may want to obtain legal advice before making a decision to dismiss.   

Covid-19 has created a lot of uncertainty for employers and unfortunately this uncertainty continues with Long Covid.  While we wait to see how the courts will approach Long Covid, the best course of action for employers is to treat any employee suffering from Long Covid with fairness and compassion and to take into consideration all of the issues outlined in this article when dealing with an employee who may have Long Covid.

To discuss an employee within your workplace, or to find out more about how you can have the right policies and procedures in place to protect your business, call us today on 023 8071 7717 or email employment@warnergoodman.co.uk to discuss your situation. 

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.