LONG COVID: SHOULD EMPLOYERS BE CONCERNED ABOUT THIS ‘NEW’ DISABILITY?

Last week, the Institute of Fiscal Studies (IFS) estimated that over 100,000 UK workers are absent with long Covid symptoms at any one time, costing businesses around £1.5bn in lost earnings.  The ongoing impact of the pandemic shows no sign of abating, but with businesses facing such huge financial costs, many might be considering how to approach employees who are absent for extended periods with the debilitating symptoms.

Some businesses may try to dismiss employees with ongoing health issues, but as a tribunal in the UK recently found, this could be considered discrimination, as the condition may in some cases be designated as a disability.

Covid can amount to a disability

A UK caretaker recently became one of the first people to successfully argue that long Covid amounted to a disability at an employment tribunal following a claim for disability discrimination.

After testing positive for Covid-19 in November 2020, the claimant suffered persistent symptoms impacting his ability to carry out his role as a caretaker for charity Turning Point Scotland. The severe headaches, extreme fatigue, joint pain, and lack of mobility he experienced also seriously impacted his daily life.   In August 2021, he was terminated by his employer for “ill-health” and launched a claim for disability discrimination.

Under s.6(1) of the Equality Act 2010, an impairment can be classed as a disability if it meets the following definition, “a physical or mental impairment that has a substantial and adverse long-term effect on an employee’s normal day to day activities.” In this particular case, the tribunal agreed that the claimant’s ongoing symptoms amounted to disability under the Act, and that his subsequent dismissal was unfair.

Although employers may well read this story with a hint of trepidation, it’s worth noting here that although in this case, long Covid was found to be a disability, not all long Covid cases will be.

This long-term impairment is experienced differentially depending on the individual, symptoms may be more or less severe, and can either appear consistently or intermittently.

So how should an employer approach the issue with their employee sensitively, practically and without triggering any lengthy legal claim?

A procedural approach

If an employee is absent from work due to long-term ill health, or a pattern of persistent intermittent absences for the same condition, their first step should always be to seek the consent of their employee to obtain a medical opinion on their symptoms to find out:

• Whether those symptoms affect the employee’s ability to work
• How long these symptoms are likely to last
• An estimated timeframe for the employee to return to work
• Whether the employee is receiving any treatment
• Whether the employee is disabled, if so, whether there are any reasonable adjustments that can be made to assist that employee’s return to work

Once a report is obtained, employers should always try to arrange a meeting with their employee to discuss the findings and any suggested reasonable workplace adjustments identified, as well as any measures they themselves believe the employer should put in place. This has been made easier to a degree since the coronavirus pandemic; with more companies offering hybrid working patterns already, and having the infrastructure needed to work remotely, the ability to work from home might be the best solution to support the employee. Other reasonable adjustments that should be considered are extended or additional rest breaks, or reasonable adjustments to intermittent sickness absence policies to accommodate higher levels of absence than usual.

Complicating factors

The concept of ‘reasonable adjustments’ is also key, and there are complicating factors that can make approaching this trickier for employers. Not all disabilities require reasonable adjustments to enable an individual to work, employers may not have the resources available to make certain adjustments, or the medical reports might not recommend any adjustments be made – a tribunal will take all these factors into account when considering a case.

Another difficult area for employers to navigate is how to proceed if medical reports suggest that an employee is not disabled, this is what happened before this recent UK case went to Tribunal. Sometimes, an employee might have an unknown underlying medical condition or, even if the reason for an employee being absent isn’t a recognised disability, the employee may have another underlying medical impairment that could be a disability, which is exacerbating the high sickness absence levels.

Before taking action on reasonable adjustments and dismissing an employee on capability grounds, we always advise employers to proceed with caution, seeking legal advice at an early stage.

Though this story is just the latest in a long line dealing with the very real impacts of the pandemic, fundamentally, the case doesn’t say anything we didn’t already know about how tribunals approach the issue of disability in the workplace. Long Covid can be considered a disability, but only if it meets the criteria set out in the Equality Act 2010, and tribunals will take the same approach to the question of whether employees require reasonable adjustments to their workplace as they always have done.

Employers can avoid similar claims if they take both medical and legal advice on managing employees displaying symptoms of long Covid and consider reasonable adjustments that they can make to accommodate those individuals.

Andrew Oakes, Solicitor, Arc Legal Group

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