When is long-COVID a disability?

Hitting the headlines recently was the first Employment Tribunal decision¹ to hold that an employee with long-COVID was disabled under the Equality Act 2010.  While this case has been widely reported by the media as showing that long-COVID is a disability – it's not that clear cut.

Whether or not an employee with long-COVID is considered disabled under the Equality Act 2010 turns on the specific facts of the case, for example the employee's symptoms, how it impacts their daily life and for how long they are likely to suffer.  In this alert we look at several questions for employers to consider and practical takeaways.

What is long-COVID?

For some people COVID-19 can cause symptoms that last weeks, months or longer, after the infection has gone.  This is called "long-COVID" and typical symptoms include:

• fatigue;
• brain fog;
• insomnia;
• depression and anxiety;
• chest pain;
• heart palpitations;
• dizziness;
• joint pain and
• shortness of breath, amongst others.

Long-COVID symptoms are likely to affect someone’s ability to work.

Is long-COVID a disability?

A key question for employers is whether an employee suffering with long-COVID is deemed to have a disability. 

Under the Equality Act 2010 a disability is defined as a

“physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities”. 

“Long-term” for these purposes means the impairment has lasted 12 months or is likely to last at least 12 months or for the rest of the person’s life. 

Whether a long-COVID sufferer meets the definition of having a disability will vary on a case-by-case basis depending on the severity of the symptoms and the resulting impact on their daily activities. 

Recent case law

In the recent Scottish Employment Tribunal case of Burke v Turning Point Scotland, Mr Burke a caretaker at Turning Point Scotland tested positive for Covid-19 in November 2020. While initially his symptoms were mild, he then developed severe headaches and fatigue.  Tasks such as showering and dressing would require him to lie down to rest from fatigue and exhaustion and he was unable to undertake usual household activities such as cooking, ironing and shopping because of a lack of energy.   

Mr Burke remained off work and his sick pay ceased around June 2021.  Following a number of fit notes and occupational health reports referencing long-Covid and post viral fatigue syndrome, Mr Burke was dismissed on the grounds of ill health in August 2021.  The dismissal letter stated that given the uncertainty around any potential date on which Mr Burke would be able to return to full duties, it was with regret that he was being dismissed.

In this case, the Tribunal held that Mr Burke was disabled between 25 November 2020 and 13 August 2021 (the date of his dismissal) as his symptoms met the relevant tests of the definition of disability as set out in the Equality Act 2010.  The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it "could well" last for a period of 12 months or more.  This was a preliminary hearing about whether he was disabled, and now he can proceed with his substantive claims including disability discrimination claim. This does not mean the employer did discriminate.

Whilst this ruling is not binding and does not mean that everyone with long-COVID will be deemed disabled, it is likely to encourage more claims from employees suffering with the condition.

What practical steps should employers take?

Employers may have employees claiming to suffer from long-COVID and they need to be aware that there is the potential for long-COVID to be classed as a disability.  Employers need to consider what practical steps they can take to best support their employees and to protect themselves against disability discrimination claims.

• Communication

  Take time to discuss with the individual the nature of their symptoms, any patterns they experience (are their symptoms worse at particular times of the day or do they tend to have periodic relapses) and how they feel the symptoms are impacting their ability to work (including the journey to/from work). How do they want managers to communicate with the rest of their team about their condition?   Employers need employees' specific consent to share any information about health.  

• Medical input

  Seek input from occupational health specialists and possibly other clinicians, especially as the body of knowledge around such a new condition is ever evolving. 

• Provide support

  Provide a supportive environment in which employees feel comfortable to be able to keep you updated on their condition and have a dialogue around what adjustments may help them.  Signpost employees to wellbeing resources, counselling, and employee assistance programmes.  Employees suffering from the physical symptoms of long-COVID may also experience consistently or intermittently poor mental health; they could benefit from support from mental health first-aiders or champions.

• Training

  Provide training to managers on how best to handle sensitive conversations surrounding health and how to manage an employee suffering from long-COVID.  Ensure managers are trained on relevant policies (such as those noted below) and understand them, rather than the policies simply gathering dust.

• Policies
  Review relevant policies such as equal opportunities, reasonable adjustment, disability or sickness absence policies, to ensure they are fit for purpose, up to date and non-discriminatory. 

Employers may see continuing numbers of employees diagnosed with long-COVID and will need to consider how best to manage, support and accommodate them.  If you have any questions on this topic please contact Paul Reeves, Leanne Raven or your usual Stephenson Harwood LLP contact.