By Aleksandra Traczyk, Solicitor in the Employment law team at Winckworth Sherwood
In October 2021, in my last article on the subject of long COVID I wrote that the Office for National Statistics (ONS) reported on 7 October 2021 that an estimated 1.1 million people in the UK were experiencing self-reported long COVID. Six months on, as reported by ONS on 7 April 2022, this figure has now risen by over half a million to 1.7 million. Of these 1.7 million, 1.2 million people had (or suspected they had) COVID-19 for at least 12 weeks previously, and 784,000 for at least one year previously. This is a staggering statistic.
It has also been reported in March 2022 that the head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long COVID symptoms as if they have a disability for the purposes of the Equality Act 2010.
With so many employees off work due to long COVID, two key questions remain for employers: can long COVID amount to a disability under the Equality Act 2010, and what does it mean for employers in practice?
Can long COVID amount to a disability?
Under the Equality Act 2010, a disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to carry out normal day-to-day activities. ‘Long-term’ means that the impairment has lasted or is expected to last for at least 12 months or more, at the time of the alleged acts of discrimination committed. ‘Substantial’ means more than minor or trivial.
Is it long term?
The ONS has defined “long COVID”, as symptoms persisting for “more than four weeks” after COVID-19 is first suspected. This would not be long enough for the purposes of the Equality Act 2010, unless the symptoms were expected to last for at least 12 months or more.
ACAS reviewed its own guidance on whether long COVID is to be treated as a disability on 4 April 2022, but has not changed it. It still states that long COVID is currently understood to be a condition that can last or come and go for “several months” but has not been more specific.
In cases where long COVID has lasted for at least a year, as it has in a large number of self-reported cases, the long-term test of the Equality Act 2010 would be met and in cases where the symptoms have continued for a few months and look likely to continue, this equally would appear to be met.
Does it adversely affect day-to-day activities?
The ONS reported that long COVID symptoms “adversely affected the day-to-day activities” of 1.1 million people, with 322,000 reporting that their ability to undertake their day-to-day activities had been significantly limited. Fatigue continued to be the most common symptom (51%), followed by shortness of breath (34%), loss of smell (28%) and muscle ache (24%). ACAS has also acknowledged that long COVID can affect a person’s ability to carry out day-to-day activities. It will be a question of fact and degree in each case.
Although some campaign groups and bodies including the Trade Union Congress have called for long COVID to be recognised as a disability under the Equality Act 2010, this has not yet happened. ECHR has acknowledged that the short amount of time that long COVID has been in existence as a condition, and the fluctuating nature of symptoms, may be a barrier to the government doing so.
What does it mean for employers in practice?
For now, ACAS has stated that rather than trying to work out if an employee’s condition is a disability, the employer should focus instead on what reasonable adjustments they can make. Similarly, the head of employment policy at EHRC has said that employers should treat long COVID as a disability in case they fall foul of disability legislation. This is certainly going to be the answer in the short term, but what about the long-term outlook?
Hopefully, those employees who have been absent due to long COVID will either eventually fully recover or be able to return to work with reasonable adjustments in place. However, what if their absence is persistent and they are unable to return to work even with reasonable adjustments in place? Employers should proceed with caution with respect to any potential dismissal, as they would in cases of any long-term sickness absence, as it is likely that in those circumstances the employee’s long COVID will amount to a disability.
Medical evidence will likely be key in long COVID cases, as it will assist employers both in terms of deciding what reasonable adjustments should be put in place and to provide an indication as whether the employee is likely to be able to return to work following a long-term absence.
Not just long COVID
Long COVID has been found to affect older people, ethnic minorities and women more severely. Employers therefore should be aware that those groups could bring an indirect discrimination claim based on age, race or sex, where they have been subjected to a detriment because of their long COVID, even when their long COVID does not amount to a disability.
Conclusion
There has been no reported case law on long COVID as yet, but this will undoubtably change in the months and years ahead as we come out of the other side of the pandemic. It remains to be seen whether the Government will take a policy-based approach to limit the number of cases coming through the courts, but this seems unlikely in view of the protections in place under the Equality Act 2010. Some have called for long COVID to be automatically deemed as a disability, but over two years into the pandemic this has yet to happen.
In any event, it is clear that long COVID could amount to a disability, depending on the circumstances, and the latest advice seems to suggest that it should be treated as such by employers in order to avoid falling foul of discrimination legislation. It is therefore vital that employers approach any long COVID cases amongst their workforce with caution in order to try to avoid the risk of any allegations of possible discrimination being raised. Compensation in discrimination cases is uncapped but loss-based and in cases of long-term ill health this potential risk could prove significant.