Is Long Covid A Disability?

A recent landmark employment tribunal ruled that a Long Covid sufferer was disabled and therefore unlawfully dismissed on the grounds of ill health after failing to turn up to work for months on end.

This has raised new important conversations in business and HR about how employees suffering from Long Covid are managed and supported to prevent claims of discrimination and unfair dismissal from being brought against employers. 

The Covid-19 pandemic was something that none of us saw coming but many of us are still dealing with it daily. Whether it's catching the virus yourself, loved ones getting sick and isolating, or work colleagues being absent for long periods due to the extended effects of Long Covid, Covid-19 is still very much a challenge that business owners must face head-on, long after furlough payments have ended.

At Neathouse Partners, we understand that you have to balance the need to manage staffing levels to maintain service delivery and operations, whilst making reasonable adjustments and important decisions related to staff that have been affected by Long Covid.

Here, we look at the proactive steps you can take to ensure that your staff have the support they need and you as a business owner are clear on your responsibilities to prevent claims of unfair dismissal or discrimination arising from Long Covid.

What Is Long Covid?

Whilst Covid-19 has been a hot topic since 2020, it’s still a relatively new illness that scientists and medical professionals don’t know the true extent of. Key information gained from coronavirus sufferers and further research shows that COVID-19 is impacting us in ways we could never have expected.

Early indications show that some people experience symptoms and effects that last for weeks or months after the initial coronavirus infection has gone.

These symptoms can come and go over time, get better, and then get worse again. This is known as a post-COVID-19 syndrome or "Long Covid" and it can affect someone's ability to work or cause them to take time off sick.

Is Long Covid A Disability?

By law, a disability is a physical or mental impairment that has a 'long-term and substantial adverse effect' on a person's ability to do normal day-to-day activities. So does this mean that Long Covid is a disability?

Long COVID affects people in different ways and while most people recover in a matter of weeks, Long Covid can affect an individual's ability to complete day-to-today activities for months or even year's on end, which would tick the ‘long-term’ box for disability definition.

This means that whilst not everyone with Long Covid could be classed as having a disability, it can be classed as a disability if certain criteria are met.

Combine this with the recent ruling in favour of Long Covid being a disability due to its ‘substantial and long-term adverse effect’ on a worker's ability to carry out normal day-to-day activities, employers need to be aware of the implications of this and take action now.

What Do Employers Need To Do?

Employers should primarily be focused on supporting employees with Long Covid with the adjustments they need based on the symptoms that they present.

Not everyone has the same symptoms, but fatigue, memory problems, shortness of breath, heart palpitations and many more are all commonly experienced.

The impact this has on an employee's ability to complete their job will depend on the severity, frequency and nature of the symptoms as well as the type of job that they do.

As employers, you should take advice from occupational health colleagues, and experienced HR consultants, and consider medical sick notes available when dealing with claims of Long Covid impacting an employee's ability to work before taking action.

Taking these steps can help to minimise claims of unfair dismissal or discrimination being bought against you as a result of your actions.

When employees present with Long Covid, you should focus on:

• understanding the difficulties they face and the reasonable adjustments that you can make to help them work. Adjusting workstations, shifts and working patterns to meet their needs where possible are all simple things you can do.
• updating risk assessments to reflect the disproportionate impact of COVID-19 on specific groups and how this can be mitigated
• continue flexible working arrangements where possible for employees directly impacted by COVID-19 themselves, or those with caring responsibilities for others that have the illness.
• be careful to avoid discrimination claims when managing Long Covid sickness concerning recruitment, redundancy, unpaid leave, long-term sick leave, disciplinary and all areas of HR where an employee may be impacted due to the effects they’re suffering from as a result of the illness.
• review all HR decisions to check that protected groups have not been disproportionately affected and take action to correct this before informing staff.

Long Covid has been shown to affect older people, ethnic minorities and women in higher proportions than other demographics. As age, disability, race and sex are all protected characteristics under the Equality Act 2010, you must tread carefully.

We advise you to take professional advice when dealing with Long Covid sickness-related disputes, disciplinaries or absence at work.

How Could 'Long Covid' Result In Claims Of Discrimination?

Disabled employees must not be treated unfavourably because of something connected to their disability.

Following the ruling that Long Covid could be classed as a disability in the case of Mr Burke, it’s important to note the following examples that could lead to discrimination and unfair dismissal claims relating to Long Covid:

• Requests for adjustments to start or finish times to avoid busy or extended commutes when having to use a wheelchair due to muscle fatigue experienced from Long Covid.
• Requests for different work stations or office space to aid with managing symptoms experienced
• Rejecting late appeals against redundancy because the illness meant they were unable to respond in time

Next Steps

As you can see, we’ve covered just a small snapshot of the potential HR issues arising from long covid and whether or not it is classed as a disability or not.

We hope we’ve given you a starting point for your conversations at your place of work but advise you to speak to us for tailored advice on all cases relating to Long Covid HR matters.