Is Long COVID a Disability Under the Equality Act?

1.8 million people in the UK are estimated to be experiencing long COVID symptoms by the latest Office of National Statistics (ONS) COVID-19 Infection Survey, but how many are likely to be considered to be disabled under the Equality Act 2010?

According to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms, it is estimated that 1.8 million people in the UK are experiencing long COVID symptoms.

What is Long Covid?

Where COVID symptoms persist for more than 4 weeks, someone will be diagnosed with ongoing symptomatic COVID but where symptoms persist for more than 12 weeks and cannot be explained by any other conditions, they will be diagnosed with Post-COVID Syndrome or “Long COVID”.  Developing Long COVID doesn’t appear to be linked with how ill someone is when they first get COVID-19 and people who had mild symptoms at first can still have long-term problems.

The most common symptoms of Long COVID include:

• extreme tiredness (fatigue)
• shortness of breath
• chest pain or tightness
• problems with memory and concentration (“brain fog”)
• difficulty sleeping (insomnia)
• heart palpitations
• dizziness
• pins and needles
• joint pain
• depression and anxiety
• tinnitus, earaches
• feeling sick, diarrhoea, stomach aches, loss of appetite
• a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
• rashes

Is Long COVID a Disability?

The short answer is:  Maybe.

This answer will provide very little comfort for employers managing absences related to suspected cases of Long COVID and the absence of a test capable of diagnosing Long COVID and varying recovery times complicates matters even further.

In a tweet posted on 7 May, the EHRC stated that “without case law or scientific consensus, the EHRC does not recommend that “Long COVID” be treated as a disability”. Unsurprisingly, COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement, in which it said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010 (a deemed disability), if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way.

The Equality Act 2010 Definition of a Disability

In cases that do not involve deemed disabilities or excluded conditions, the question of whether an individual is disabled will be answered with reference to the all-important statutory definition in section 6(1), EqA 2010, which says:

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Claims a Sick Employee Might Bring

The EqA 2010 prohibits direct disability discrimination indirect disability discrimination, discrimination arising from disability, disability harassment and victimisation in the workplace. It also puts employers under a duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disabilities.

There are a number of different claims that might arise out of an employee’s sickness, depending on whether the employee is disabled under the Equality Act 2010 and whether the employer ultimately decides to dismiss the employee by reason of their incapacity.

What Can Employers Do to Manage Absence in Suspected Cases of Long COVID?

In consideration of both the EHRC statement and the established definition of a disability under the EqA 2010, Employers should adopt a cautious approach when managing cases of suspected Long COVID that may be considered a disability under the EqA 2010.

Key steps Employers should take include:

• Investigate the cause and likely length of absence: Employers should establish the reason for absence and consider whether an individual is likely to return to work in the foreseeable future.
• Obtain medical evidence: Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.
• Meet and consulting with the employee regarding medical evidence. If the employer has obtained a medical report, it should meet the employee to discuss the report and consult with the employee before taking any action on the basis of its recommendations. Consultation involves an ongoing exchange of information and views concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.
• Consider reasonable adjustments or alternative employment. In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future.  Employers should also consider if there is another job within the business that might be more suitable for the employee.  Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements.  Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee’s home or other convenient location, the employee might require more notice of meetings than provided for by the employer’s policy or more time to read material and prepare for meetings.
• Dismissal and its alternatives. Where it looks as if the employee will not be able to return to work, or the prognosis is such that it cannot be said when (if at all) the employee might be fit, the employer will need to consider the situation carefully. There may be options to explore other than the obvious route of dismissal on capability grounds. It is important to consider these options both from the point of view of unfair dismissal law and because there may be contractual entitlements which arise and failure to explore them may give rise to claims for breach of contract.

Do You Need Assistance with a Long-Term Absence Issue?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance.  If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.