Does Long COVID Constitute A Protected Disability?
It is trite to say that COVID-19 has had an enormous and unprecedented impact on the workplace. Since March 2020 we have seen national lockdowns which have led to huge amounts of employees being placed on to furlough leave. We have also sadly seen significant job losses due to redundancies. Employers have had to quickly grapple with company wide home working arrangements and also undertake meticulous planning and changes to their workplaces to ensure that they are COVID secure. Currently employers may be dealing with employees who are reluctant to return to the workplace. A further consideration employers have, and one they will need to continue to address, is the issue of long COVID.
It is my understanding (albeit from a completely non-medical background) that there is no clear identifiable or easily labelled condition which constitutes long COVID. The absence of being able to clearly pigeonhole the condition or illness does not make it any less real for those employees who unfortunately suffer from it, or for those employers who need to cope with the impact the condition has had on their employees.
Symptoms such as extreme fatigue, lack of concentration or “brain fog”, joint pain, depression and anxiety, insomnia, dizziness and shortness of breath (to mention just a handful of the recognised symptoms) will cause significant difficulties for employees to perform their duties either in part or at all. This will inevitably lead to absence from work and reduced productivity – significant problems for employers.
The Office of National Statistics releases figures on long COVID every four weeks. The current figures were accurate as of 6 June 2021.They confirm the following:
- An estimated 962,000 people living in private households in the UK (1.5% of the population) were experiencing self-reported long COVID for four or more weeks.
- Symptoms adversely affected the day-to-day activities of 634,000 people (65.9% of those with self-reported long COVID), with 178,000 (18.5%) reporting that their ability to undertake their day-to-day activities had been “limited a lot“.
- Fatigue was the most common symptom with approximately 535,000 people reporting the symptom.
Current infection rates are high in the seven day period up to and including 19 July 2021, with 320,170 cases. It is likely therefore that some of those infected will unfortunately suffer from long COVID. With the pandemic not showing any signs of slowing down, long COVID is something that both employees and employers will need to understand and live with.
The Trades Union Congress (TUC) recently released a paper on Long COVID in which, amongst other things, it is lobbying the Government to recognise long COVID as a disability under the Equality Act 2010 (EqA). Should it constitute a disability then those employees suffering from it will have protection against discrimination.
Presently under the EqA there are certain conditions that are deemed to be a disability (cancers, HIV and multiple sclerosis), meaning there is no need to consider the test of what constitutes a disability (as explored later in this article). The TUC appears to be suggesting that long COVID should be similarly recognised by the Government (which would presumably need to be achieved via secondary legislation). I do not believe that the Government will do this and I do not necessarily believe it should. The test for what constitutes a disability should provide the necessary protection to those who suffer from significant and sustained long term COVID symptoms.
For a condition to constitute a disability under section 6 EqA the following tests must be satisfied:
- The condition is a mental or physical impairment.
- The condition is long term which means:
- It has lasted at least 12 months;
- The period for which it lasts is likely to be 12 months; or
- It is likely to last for the rest of the life of the person affected
- The condition has an adverse effect on day to day activities. The adverse effect must only be more than merely trivial.
It is clear that long COVID is a physical impairment (test 1) and depending upon the severity of the symptoms it is likely to have an adverse effect on day to day activities (test 3).
The crucial consideration appears to be whether the condition is a long term impairment. If it is then it is likely to constitute a disability.
When considering the question of whether the condition is long term it needs to be considered at the date of the alleged act of discrimination. If an employee reports as having long COVID on day one and then their employer does not make any adjustments for them on day five, would the illness constitute long term?
Potentially it would, even if it did not then go onto last for 12 months. The reason of this is that consideration would be given as to whether on day five, when adjustments were not made, was the long COVID likely to last 12 months. The word “likely” should be unpacked and understood as being something “that could well happen”. An employment tribunal would need to perform the hypothetical and artificial practice of determining on day five what the prognosis would have been in light of the evidence available at the time.
Given reports such as that produced by the TUC, which cite people who have suffered with long COVID for more than 12 months and the developing evidence and data of the condition, it is not beyond the realms of possibility that the employment tribunal could find that on day five Long COVID was likely to last at least 12 months. If it makes such a finding then the employee would be classed as disabled for the purposes of the EqA. If it did and the employer had refused to make reasonable adjustments for the employee then a successful discrimination claim could be made against the employer.
With this in mind, employers need to tread very carefully when dealing with employees who have long COVID as, even if they have not had it for very long, it could still constitute a disability.
ACAS has produced guidance for employers and employees on long COVID. ACAS appears to recognise that the condition could be a disability and therefore encourages employers to consider making reasonable adjustments to help the employee. It seems to be encouraging employers to focus on helping employees by making reasonable adjustments, as opposed to focussing on whether the employee is disabled or not. Given how broad the test is for deciding if an employee is disabled this seems to be sound advice.
It is quite possible that there will be disability discrimination claims arising from the treatment of employees suffering with long COVID. Some employers may well lose disability discrimination claims despite genuinely believing that employees suffering with long COVID were not disabled.
I would advise any employer faced with employees suffering from this condition to think and act carefully, cautiously and supportively. Jumping to conclusions, dismissing the symptoms, issuing warnings or scrutinising, questioning and criticising employee’s suffering with the condition could all be potential acts of disability discrimination.
If you are an employer and need the advice of an employment law solicitor regarding long COVID or any other discrimination or employment matter, then contact me directly by emailing robert.zacal@GAsolicitors.com or call 01752 203500.