Employment and Long Covid: Is it a Disability under the protection of the Equality Act?

Exhausted female worker sit at office desk take off glasses feel unwell having dizziness or blurry vision, tired woman employee suffer from migraine or headache unable to work. Health problem conceptAll employees have the right to work in a safe environment and have protection from unfair dismissal for reasons attached to a disability.

Employers need sound policies and to need to ensure its staff are not directly or indirectly discriminated as a result of a disability.

As of September 2021, an estimated 1.1 million people were suffering from commonly named ‘Long Covid’ according to the Office for National Statistics. The law on this area however is still evolving. This is because medical research and prognosis is still developing as such we do not presently have concrete evidence on how Long Covid may, or may not, last. As such we do not know if this is a permanent condition and as such what are the implications in terms of Employment Law and Employment Rights. So is it or will it , be considered a disability under the Equality Act, that is the question.

Dismissed because you have Long Covid, and you are unable to attend the workplace?

Is this an unfair dismissal? What are your rights?

As it stands, the medical diagnosis in respect of Long Covid is relatively unknown and whether a doctor would be prepared to confirm the condition fits within this definition is a still a discussion at present .

Under the Equality Act 2010 a person has a ‘disability’ if they have:

  • a physical or mental impairment;
  • which has a ‘substantial’ and ‘long-term’ adverse effect on the ability to carry out normal day-to-day activities.

Under the Act, ‘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

There is still a lot to learn about the longer term consequences of Covid 19. This brings with it legal hurdles to overcome, since those that may have been dismissed due to ‘Long Covid’, may find it difficult to satisfy a Tribunal, at this stage, that their personal condition of ‘Long Covid’ would or may last for 12 months or more, or is a progressive condition, since no one really knows yet how different variants affect (or may affect) different people.

This does not mean that is automatically lawful to terminate a member of staff with Long Covid. Research into Long Covid is ongoing and for some, they are likely to satisfy the disability test under the Equality Act. Such as those with medical evidence available to them or those whose symptoms have created a known diagnosed medical condition , which is a disability such as a long term heart condition. As such whilst Covid alone may not qualify the longer term condition it has caused or exaggerated might.

What are the Employer’s Responsibilities?

Employees would be entitled to sick pay under the terms of their contract; staff policies or statutory sick leave in any event. If the employee cannot attend the workplace, but they are still fit enough to work a careful conversation could be had to remote working , but a risk assessment not to cause the employee harm would be needed. This would essentially be following the ‘reasonable adjustments’ plan expected of any employer where an employee exhibits a potential disability along with referral to a doctor or occupational health advisor for guidance and advice.

If the condition is, such, that remote working is impossible or they are too sick careful consideration must be considered before placing the staff member on a capacity/capability review or serving then with notice. All staff are entitled not to be discriminated against; or to be treated under the terms of their contract and the company policies and  so an employer needs to be careful. If a long term diagnosis is later given  and if it treats it employee outside of a fair procedure it could be looking at an unfair dismissal claim; personal injury or if they have made the condition worse, for example forcing them to work in fear of losing their job this would be breach of contract and discrimination. These are potential issues for the employer , so ongoing communication with HR or a line managers is always advisable to be made available and open to staff.

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The Equality Act doesn’t apply to you, but you feel you have been treated badly or dismissed as a result of Long Covid? 

ACAS has published guidance on dealing with staff with Long Covid as it still remains an issue that many employers and HR departments are going to have to consider when drafting policies and agree a practice.

Employers and HR departments up and down the country have their own perception of the consequences of Long Covid and we have seen proactive and less helpful actions taken. Some seem to be taking decisions on the basis of this perception rather than trying to see what they can do to support their staff by offering reasonable adjustments or consulting with medical experts to understand the position.

An employee may be too afraid to ask to reduce their workload ; do less days ; take time off because they are scared they will be dismissed . If they have already informed their employer , they have Long Covid, but they have taken no action, what should they do?  Even if staff cant pursue an employer for unfair dismissal or discrimination , then personal injury could still be a potential claim. Causing harm by placing staff in a position they must or feel they must work, whilst sick, is potentially breach of contract and a personal injury claim.

An employee also has protection against discrimination as a result of a perceived disability. It is this protection which we expect to see utilised by those unfairly dismissed with Long Covid. For this reason, all is not lost if, on the strict legal test, your Long Covid fails to meet the Equality Act definition and this is something that Employers and HR Teams should be fully aware.

We as employment lawyers have seen varying responses ; positive and not so, but careful scrutiny of contracts, policies and guidance can either lead to a mutual proposal; or hybrid remote/sickness working system or ultimately a grievance or claim could follow, so employers are encouraged to engage in sensible and fair practices and discussions.

What should you do? 

It is advisable that you seek medical advice for both support and evidence of your medical position.  This will be helpful for your wellbeing and supporting your approach to your employer. Disclose this promptly and in writing to your employer and asking them for support and adjustments. If they have a sickness policy or contractual terms utilise this as a guide and if they are still unsupportive you can seek advice or raise a grievance. Check your health insurance and other insurances to see how you may be covered for medical support and/or legal support if later required.

If you are nervous about telling your employer and don’t want to take legal action you could take a more commercial approach and write to your employer putting them on notice and asking for adjustments. To help attach a business proposal on how it could work for you and them. Making it attractive to still have your skills available, avoid a claim, but something that also works for you can be a starting point. Obviously,  that depends on your ability to still work and your health really must come first. If you are sick and unable to work you need to explore the employer health policies; medical cover or even ill health retirement then look at any government assistance which may help you .

There are charities and  a government site that have been set up to assist people and it is always advisable to reach out:

Covid Aid Charity offering support

Government website offering guidance for Long Covid

NHS specialist clinics to help recovery and support

If you don’t have contractual sick pay only statutory pay or you are dismissed you may also be eligible for a PIP which is a Personal Independence Payment

This is state benefit for helping people deal with some of the extra costs associated with long-term illness or disability. It is not means-tested, so it doesn’t matter if you have a job or another source of income.  It was introduced in 2013 to replace the Disability Living Allowance (DLA). The criteria for this you must :

  • have an illness or disability that means you need help with personal care or getting around
  • have had the condition or disability for three months, and expect it to continue for at least nine months (unless you’re terminally ill with less than six months to live).

Conclusion 

There have been calls for long Covid to be recognised as an occupational disease too, which would mean frontline and key workers may receive compensation if they can’t work because of the illness. This is something countries such as Belgium, France, Spain, Italy and Denmark have already done. This shows changes are being considered.

Long Covid is still an emerging area of law and practice and is one that Employers should keep firmly in mind when dealing with anyone suffering from Long Covid.  The law on disability discrimination based on a perceived disability is also evolving since it’s recognition by the Court of Appeal in 2019. It does, however , reinforce the values enshrined in Employment Law that someone with a disability should be treated fairly and by extension if an employer wrongly perceives someone to have a disability and is treated unfairly as a result they should be afforded suitable protection from being treated unfairly.

Our advice is clear policies and communications.

Karen HoldenAbout the author

Hot shot solicitor Karen Holden launched A City Law Firm in 2009 after growing concerned about the impact pregnancy would have on her career at an international law firm.

The company are now the go-to legal experts for entrepreneurs and they have won several prestigious accolades including Most Innovative Law Firm of the Year 2016. Karen has also been shortlisted for Working Mums Champion this year by WorkingMums.

Karen’s drive to succeed stems from being raised on a tough council estate in Wales, where her her mum worked three jobs as a single parent. Desperate for a better life, Karen managed to secure a scholarship to study at Cambridge before qualifying as a solicitor.

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