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Long Covid: What types of claims do employers need to be aware of?

People suffering from long Covid have reacted with alarm to comments by government's equalities watchdog, that the condition should not be treated as a disability.

In a tweet posted on Sunday night, the Equalities and Human Rights Commission (EHRC), said: "Discussions continue on whether 'long Covid' symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that 'long Covid' be treated as a disability."

The statement prompted immediate concern and confusion from long Covid support groups and unions.

The National Institute for Health and Care Excellence (NICE) defines Long Covid or post-Covid syndrome as: 'signs and symptoms which develop during or following an infection consistent with COVID-19 […] which continues for more than 12 weeks and is not explained by an alternative diagnosis.' Symptoms are wide ranging and fluctuating and can include 'breathlessness, chronic fatigue, brain fog, anxiety and stress, generalised pain and persisting high temperature.' The NHS website states that the long-term effects of the illness can be debilitating, even for young and fit people, or those who did not initially attend hospital when they had Covid symptoms.

Can Long Covid be treated as a disability and could this lead to a potential discrimination claim?

Under s.6 of the Equality Act 2010, disability is a physical or mental impairment which has a 'substantial and long-term' negative effect on a person's ability to do normal day-today activities. 'Long term' means that the impairment has lasted or will last for at least 12 months, or can come and go or is likely to last for the rest of the person's life.

It has been reported by the Trade Union Congress (TUC) that almost three in ten of their respondents in a survey surrounding 'workers' experiences of long covid', reported that they had been experiencing Long Covid symptoms for 12 months or more.

As the long terms effects of Long Covid are relatively unknown and in the absence of any Employment Tribunal cases defining Long Covid as a disability, it is difficult to say whether it could be perceived at this stage to be a disability. Due to the uncertainties surrounding defining Long Covid as a disability under the Equality Act 2010 and to avoid any potential claims for disability discrimination in the future, ACAS have stated that employers should consider putting in place reasonable adjustments for those suffering with Long Covid, to ensure that these employees are not put at a disadvantage in comparison to their work colleagues.

Reasonable adjustments for people with Long Covid could include:

• Reduced hours with a phased return or working a more flexible day with longer or more frequent breaks;
• Paid leave for medical appointments;
• Support with their work load;
• A change in duties so that a member of staff who struggles with breathlessness or a persistent cough doesn't have to talk to other customers or other staff;
• A temporary re-deployment of an office-based role, with a working from home role;
• Changes to performance targets so a member with 'brain fog' has more time to complete tasks.

Presently, the TUC are campaigning for Long Covid to be considered as a disability under the Equality Act 2010, to ensure that workers with Long Covid are protected from discrimination and job loss.

Other potential claims for discrimination

As well as potential disability discrimination, Long Covid has also been found to severely affect older people, ethnic minorities and women. The Office for National Statistics has reported that as of 6 January 2022 approximately 1.3 million people living in the UK (1.9% of the population) were experiencing self-reported Long Covid. The rates of self-reported Long Covid were greatest in people aged 35-69, females, those living in the most deprived areas, those working in health or social care and those with a pre-existing health conditions. Employers must also therefore avoid discriminating on the grounds of protected characteristics such as age, disability, race or sex.

Potential Claims for Unfair Dismissal

If the employer feels that the employee is unable to do their work or is taking too much time off work due to Long Covid, they should act supportively and see if they can do anything to help e.g. organising a further occupational health assessment to find out if more support is needed. The employer should ensure that they have done everything that they can to assist the employee prior to considering a capability procedure. If the employer dismisses the employee without firstly carrying out a full and fair capability procedure, then the employee could make a claim for unfair dismissal at the employment tribunal.

For more information contact Jennifer Smith in our Employment & HR department via email or phone on 0161 918 0016. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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