Most legal COVID-19 restrictions have now been lifted in Scotland, England and Wales. As a result, city centres and commuter routes are beginning to resemble what they looked like before the pandemic. However, it is estimated that more than 2 million people are still suffering the effects of long COVID. According to a recent survey undertaken by the Office of National Statistics, 6.2% of adults in Great Britain believe they may have experienced long COVID since the start of the pandemic. Of this group, 57% reported that long COVID had negatively affected their general wellbeing, 39% reported it had negatively affected their ability to exercise and 30% reported it had negatively affected their work.
As a result, employers must consider how to manage employees with long COVID. There is not a one-size-fits-all solution, and employers need to consider this in terms of implementing and following policies.
What is long COVID?
The term “long COVID” has been most commonly used to describe signs and symptoms that continue to occur or develop for more than 12 weeks, and are not explained by an alternative diagnosis, after an individual has contracted and suffered the effects of acute COVID-19.
The Trade Union Congress (TUC) recently conducted a study relating to workers’ experiences of long COVID. The TUC found that the symptoms of those suffering the effects of long COVID were varied and each individual surveyed experienced these symptoms to greater or lesser extents. Fatigue, brain fog, shortness of breath, difficulty concentrating, memory problems, pain-related symptoms and depression were the most commonly experienced symptoms.
Could long COVID amount to a disability?
The TUC has argued that long COVID should be deemed a disability. However, as discussed above, the effects of long COVID can be different for different people. Each case will need to be considered on its own merits as to whether their condition qualifies as a disability.
The Equality Act 2010 defines a disability as a physical or mental impairment that has a “substantial” and “long-term” adverse effect on a person’s ability to do normal daily activities. Employment tribunals do not focus so much on the medical label given to a condition, but will look at the effect of the impairment. Someone suffering from chronic fatigue will likely be considered to be suffering from a physical impairment. Someone who struggles with concentrating will likely be considered to be suffering from a mental impairment.
“Substantial” means more than “minor or trivial” and so has a low threshold. “Long-term” means it has lasted or is likely to last 12 months or longer. However, long COVID is a new condition and it is unlikely any case coming before a tribunal now will be on the basis that someone has had long COVID for 12 months or longer. It will therefore be for a tribunal to predict how long the impairment may last. As time passes, it seems viable that a tribunal could find that long COVID can amount to a disability under the Equality Act.
How should employers approach a case where an employee says they have long COVID?
Our advice to employers is to treat long COVID as any other health condition. Employers should ensure they have relevant medical evidence in front of them before making any decisions. Specific medical evidence obtained for the purposes of litigation will likely be even more important than previously, whether this is from a respiratory consultant, mental health professional, cardiovascular expert or otherwise. Where previously a decision may have been made based on GP notes, these notes are unlikely to be sufficient to draw a sensible conclusion when it comes to cases of long COVID.
The employer should come to a decision as to whether an employee is disabled under the Equality Act by considering the evidence. An employer may consider that there is a high likelihood that the employee’s condition amounts to a disability and look to meet its duties to the employee. In doing so, it does not need to formally concede the position on disability, it can simply agree to work with the employee to alleviate the impact and, if appropriate, help get the employee back to work. This could involve looking at workplace provisions, criteria and practices (PCPs), such as working hours, workload, physical tasks and travel requirements, and making adjustments to these.
As to what adjustments must be made, this will depend on what is reasonable, considering factors such as the cost, the practicality of making the adjustment and its effectiveness. There has been case law which has looked at whether it is reasonable to extend full pay during absences as an adjustment. On balance, the cases have decided that employers will only rarely be required to extend sick pay as a reasonable adjustment because it does not usually assist the employee to work. However if an employer provides permanent health insurance benefits, the expectation that the employer does what it can to ensure the employee can benefit from this may be greater.
It is advisable that employers keep contemporaneous notes of their decision-making process when implementing or rejecting reasonable adjustments. These will be helpful in a tribunal hearing.
Will dismissal be unfair and discriminatory?
An employer should ensure that its absence management policies are fit for purpose and cater for the peculiarities that long COVID presents. If the policies are appropriate and followed properly, then a dismissal may be fair. As above, employers should ensure that notes are kept of their thought-making process when it came to the decision that the employment was no longer sustainable.
Aside from the disability discrimination claim that an employee may bring if their condition amounts to a disability, employers should consider other indirect discrimination claims that an employee may bring. Employers should recognise that other protected characteristics may also be triggered when engaging with or making any decision relating to an employee suffering from long COVID. The impact of the condition may vary considerably between protected groups e.g. older employees, ethnic minorities and/or women – all found to be more susceptible to long COVID. Therefore, any capability procedures should be approached with caution and some flexibility maintained. A rigid approach, which dictates that no reasonable adjustments will be made if an employee is off sick with long COVID and the employer will dismiss, could by itself amount to an indirectly discriminatory practice if a protected group is treated less favourably. Whilst it would be open to an employer to argue that the practice was justified, it would need to give some serious strategic thought to how that argument would be put forward.
Closing remarks
The Department of Business, Energy and Industrial Strategy (BEIS) and Acas have developed a new advisory hub for employers and disabled people in England, Scotland and Wales, which includes advice relating to reasonable adjustments, flexible working and long COVID.
We are yet to see how the tribunals will interpret an unfair dismissal or discrimination case based on long COVID. However, whilst this is new ground for all of us, the legal concepts do remain the same and it will be for the tribunals to apply those concepts to each set of individual facts presented to it.
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