What is long covid-19?
Long covid-19 as disability
Legal test
EHRC comments
ET's approach
Comment
As a recent tribunal case concluded that long-term covid-19 symptoms can be considered a disability under the Equality Act 2010 (EqA), research has indicated that the condition is significantly impacting almost 3% of the population. This article explores what this means for employers.
In the early days of the covid-19 pandemic, it became apparent that, in a significant number of cases, symptoms of the virus had a long-lasting effect beyond the typical recovery period. As is now widely understood, post-covid-19 syndrome, or "long covid" as it is commonly known, means that someone may suffer from a wide range of symptoms even after the covid-19 infection has resolved. These symptoms can last for weeks or months and include:
- fatigue;
- shortness of breath;
- chest pain;
- joint pain;
- headaches;
- brain fog;
- a lasting fever; and
- depression and anxiety.
A recent study found that one in eight adults experiences long covid-19 symptoms and recent figures released from the Office for National Statistics show that as of 1 May 2022, an estimated 2 million people living in the United Kingdom were experiencing long-term covid-19 symptoms. Out of this group, 71% reported that these symptoms adversely affected their day-to-day activities, with 20% reporting that these activities had been "limited a lot".
The possibility of long covid-19 being classed as a "disability" under the EqA has been a point of discussion since 2020,(1) as this would give sufferers protection from discrimination. Is there more clarity now?
The relevant legal test for whether a person has a disability under the EqA is whether they have a "physical or mental impairment" that "has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities".
Given the potential range of symptoms, a long covid-19 sufferer would most likely be able to show that they have a physical or mental impairment that adversely impacts their ability to carry out normal day-to-day activities. Whether they are then able to establish that the effect is "substantial", however, will depend on the severity of their symptoms. In the past, the reports of long covid-19 symptoms suggested that they could meet this hurdle.
The final part of the test is whether the adverse effect(s) of the impairment are "long-term". This means that symptoms:
- have lasted at least 12 months;
- are likely to last at least 12 months; or
- are likely to last for the rest of the life of the person affected.
On 8 May 2022, the Equality and Human Rights Commission (EHRC) tweeted that "without case law or scientific consensus, EHRC does not recommend that 'long Covid' be treated as a disability". This caused widespread criticism and controversy, particularly from long covid-19 support groups and unions concerned that this could lead to employers overlooking their duties and not giving employees the support they need.
The EHRC later clarified their tweet in a statement, setting out the legal test for a disability and confirming that although the condition is not among those listed in the EqA as automatically amounting to a disability:
this does not affect whether 'long Covid 'might amount to a disability for any particular individual…[that] will be determined by the employment tribunal or court considering any claim of disability discrimination.
Clearly, it depends on the individual in question and how the condition impacts on them.
Although this is a question to consider on a case-by-case basis, the Employment Tribunal's (ET's) first assessment of this issue was widely anticipated.
Since the EHRC's tweet, the ET has found for the first time, in the case of Mr T Burke v Turning Point Scotland, that long covid-19 can be considered a disability under the EqA, as, in the claimant's circumstances, the relevant tests were met.
Burke, a caretaker of 20 years for the charity Turning Point Scotland, contracted covid-19 in November 2020 with mild symptoms. After his isolation period ended, he developed symptoms such as severe headaches, fatigue, joint pain and loss of appetite, which left him unable to attend work. His symptoms varied in severity, but he was dismissed in August 2021, on the basis that he "remain[ed] too ill to return to work… and there appears to be nothing further [Turning Point Scotland could] do to adjust [his] duties or work environment."
The judgment held that Burke did indeed suffer from a physical impairment of long covid-19 that lasted through to August 2021. In terms of the impact on his day-to-day activities and whether this met the threshold of "substantial", the seriousness of the effects varied over the relevant period. Nevertheless, his ability to prepare meals, walk, sleep and concentrate were found to be substantially affected. On the question of whether this was "long term", the ET noted that it was inherently difficult to know when long covid-19 might resolve. However, it was satisfied that at the time of Burke's dismissal, the effects of his illness were likely to last for 12 months or more and were therefore "long-term".
In this case, the claimant's account of the impact that long covid-19 had on him was accepted by the ET. However, it was acknowledged that the records from his general practitioner (GP) did not particularise the issues that affected him, potentially a consequence of the lack of face-to-face consultations at the time. A challenge for both parties in such cases could, therefore, be evidencing the impact of the condition over the relevant period when the available medical evidence is limited.
Although the question of disability will turn on the particular facts and individual claimant, the ET's decision will of course be referred to by other long covid-19 sufferers looking to argue that they too are disabled for the purposes of the EqA.
Recent data indicates that the prevalence of long covid-19 is increasing; therefore, it can be expected to see many more of these cases going forward.
Employers can take the below steps to support employees who are suffering with long covid-19:
- treat each case individually – the impact of long covid-19 (in terms of symptoms, severity and duration) varies significantly from person to person. Employers will need to consider each case individually and consider seeking expert advice on the impact of the condition on that employee;
- continue implementing reasonable adjustments – the Advisory, Conciliation and Arbitration Service advises employers to be aware that the effects of long covid-19 can come and go. On some days the employee may seem well, but on others their symptoms can be worse, and they might need to take time off work again. Employers may therefore be uncertain whether an employee's long covid-19 is a disability, but by adopting reasonable adjustments where possible, this will support and alleviate difficulties faced by the employee as well as mitigating legal risk;
- consider adopting some flexibility when requesting medical evidence – when following your sickness absence policies, it may be necessary to demonstrate some flexibility within these policy boundaries. In Burke v Turning Point Scotland, the ET accepted that there was slightly less medical evidence and acknowledged that some of the claimant's fit notes were issued without a consultation with a GP, something that may occur more often given the current difficulties in getting appointments and waiting for referrals;
- engage with medical professions – given the increased knowledge and developments surrounding long covid-19, it is important to engage with occupational health to understand the employee's symptoms and take legal advice where necessary to identify if employers have any further obligations given the developments;
- speak to insurance providers – now that it is possible for long covid-19 to meet the test for being considered a disability, employers should keep an eye on whether their permanent health insurance (PHI) or income protection insurance providers will change how they approach long covid-19 and offer cover to employees who are suffering from the condition. Long covid-19 sufferers may well surpass the "deferment period" that most PHI schemes stipulate (which means benefits are not payable until the employee has been unable to work for a specified period); and
- be alert to other discrimination risks – recent research by the Institute of Fiscal Studies shows that the impact of long covid-19 is not felt equally across society, or indeed the workforce. Long covid-19 sufferers are more likely to have pre-existing health conditions, be female and be middle aged. The potential interaction between long covid-19 and pre-existing health conditions could make unpicking the legal question of disability complicated. For this reason, understanding the impact of the condition (or multiple conditions) on the individual employee should be the focus. The fact that the condition affects women of a particular age in greater numbers could present a risk of indirect sex or age discrimination claims. This makes an individualised, supportive and well-reasoned approach to managing long covid-19 in the workplace even more important.
For further information on this topic please contact Amy Cooper or Pearl Aggrey at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.
Endnotes
(1) Further details are available here.