Updated position

Back in May the Equality and Human Rights Commission (EHRC) seemingly created controversy by sending out a tweet questioning whether long Covid amounts to a disability in law. In the below article I shared my thoughts on the legal position, related policy issues and practical steps employers should be taking in managing employees with long Covid.

A recent employment tribunal decision in the case of Burke v Turning Point Scotland has put this issue back on the news agenda. In that case the employment tribunal concluded that, at least in the case of Mr Burke, his long Covid symptoms (described as post-viral fatigue) were a disability. 

However, for the reasons explained previously and repeated below, decisions on what amounts to a disability in law are factually sensitive. The fact that Mr Burke's long Covid symptoms were found to be a disability does not automatically mean other employees with long Covid will benefit from the same protection. That will depend on their own factual circumstances.

In particular, in Mr Burke's case the key issues were

  • Whether evidence given by him and his daughter exaggerated his symptoms; and
  • Whether his long Covid symptoms were likely to last for at least 12 months.

The first point essentially came down to whose evidence the employment tribunal preferred. They believed that his and his daughter's evidence was credible and the key learning point for other employers is that arguments based on a paucity of references to an employee's symptoms in GP records may not gain much traction. Instead the employment tribunal was influenced by the demands on GPs and the nature of telephone-based consultations during the pandemic to accept that symptoms may have been discussed but not noted.

In relation to the second point, Mr Burke was dismissed around nine months into a period of absence due to long Covid symptoms. His dismissal referred to the fact that he had said he did not know when he would be fit to return to work and went on to say that there did not appear to be a potential date on which there was a likelihood of him being able to return. In essence, his employer was therefore undone by its own dismissal letter as it clearly acknowledged that Mr Burke's symptoms could continue beyond 12 months. 

It remains very much the case that if long Covid symptoms do clear up within 12 months then an employment tribunal may find it is not a disability and the analysis below therefore continues to be relevant.

Controversial or not?

The EHRC's tweet read:

"Discussions continue on whether ‘long Covid’ symptoms constitute a disability. Without case law or scientific consensus, EHRC does not recommend that ‘long Covid’ be treated as a disability."

In response to press reporting the EHRC has subsequently clarified that the point they were making is that, because long Covid is not a deemed disability such as cancer, HIV or MS, then they cannot say all cases will amount to a disability in law.

Accordingly, while the EHRC's tweet has been viewed as controversial by some, it is really just a statement of the law. 

The definition of a disability in the Equality Act 2010 focuses on the symptoms and effects of a medical condition, not its label. That is often advantageous to people with disabilities as they can be protected from discrimination before there is any formal diagnosis of their condition. However, there is often a significant range of severity in how people experience the same medical condition, which means the test can sometimes cause confusion to employers and employees as to what is protected as a disability.

So when might long Covid be a disability?

The definition of disability for discrimination law purposes is contained in section 6 Equality Act 2010. A disability is "a physical or mental impairment that has a substantial and long term effect on someone's ability to carry out day-to-day activities".

In this context "long term" means a condition that has lasted 12 months, is likely to last 12 months or is likely to last for life.

In applying that definition to long Covid it is easy to see why whether or not long Covid symptoms are protected as a disability could vary from case to case:

  • Based on the NHS website, it appears they view someone as having long Covid symptoms if they are still unwell after 12 weeks. Accordingly, if someone's symptoms have significantly improved after six or nine months then they are unlikely to have a disability
  • It may also be difficult to predict in advance whether someone's symptoms are likely to last for 12 months
  • There are a range of potential symptoms of long Covid – some (such as extreme tiredness) are likely to be seen as having a substantial effect on someone's ability to carry out day-to-day activities whereas others (such as rashes, pins and needles or joint pain) may not always be severe enough to meet that part of the definition.

Accordingly, the EHRC is right to say that long Covid will not always be a disability. Much will depend on a person's individual symptoms, how they are affected and for how long.

The policy question: should long Covid always be treated as a disability?

The EHRC tweet has opened up a debate over whether long Covid should always be treated as a disability. The Trades Union Congress (TUC) are apparently asking the Government to "automatically treat long Covid as a disability". By that we presume they mean adding it to a list of what are known as 'deemed disabilities': conditions that, by law, must always be treated as disabilities and do not require application of the statutory test. They include cancer, HIV infection and MS along with severe disfigurements and blindness.

On the face of it, that is a reasonable argument for the TUC to make and it would no doubt give comfort to many who are suffering long after having tested positive for COVID-19. That said, the Government intends for us to 'live with' COVID-19 as if it was any other respiratory illness and it would seem inconsistent with that to legislate to automatically make long Covid a disability. Additionally, most of the conditions that are deemed disabilities are ones for which there is a clear diagnostic test – while I am not a medical expert, I understand that is not the case for long Covid and the EHRC's tweet referred to the lack of a scientific consensus.

It may also be difficult to justify treating COVID-19 any differently from many of the other conditions in which disputes often arise as to whether the statutory definition of disability applies. To take a topical example (as it is mental health awareness week), it is often difficult to assess whether depression or anxiety are disabilities. The answer usually differs from case-to-case depending on a person's own experience of the conditions and their prognosis. It is far from certain that clearing up confusion around whether long Covid is a disability is more important than providing more clarity around mental health and other conditions.

Overall, there is a good reason why the definition of disability is generally based on the effect of a condition rather than a label or diagnosis. It ensures that legal protections are based on need rather than being a tick-box exercise.

So how should employers manage long Covid?

Whether or not long Covid is a disability, employers should recognise that the pandemic continues to affect all employees and that some may experience debilitating symptoms weeks or months after a positive COVID-19 test. Good employers should therefore be looking to support any employees with long Covid symptoms. The key practical steps are as follows:

Openness and transparency: Employers should be encouraging employees to speak to them if they have concerns about long Covid symptoms. If employees know they will be supported then they may come forward to discuss their concerns and that will help manage the risks of disputes arising further down the line.

Listen to employees: Employers should talk to employees who continue to suffer after having COVID-19 to understand how they are affected and what adaptations might help them at work. 

Be flexible: Regardless of whether or not there is a legal duty to make reasonable adjustments, minor adaptations that help an employee operate to their full potential make good business sense. With an increased drive towards flexible working anyway, there may be simple steps employers can take to make employees with long Covid symptoms feel supported.

Take advice: Employers should make full use of occupational health services where they have access to them and ensure that advice focuses on the effects of an employee's condition and what can be done to alleviate them in the workplace. Moreover, employers should not hesitate to ask follow up questions if initial advice from occupational health does not provide the information they need to make decisions. If an employee's symptoms do have a significant impact on their day-to-day lives, with no sign of imminent improvement, it may be safest to work on the basis they are disabled.

Consider your rationale for rejecting any requests: There may well be cases where occupational health advisers consider that long Covid symptoms are unlikely to amount to a disability and employers want to rely on that advice. If so, it may be helpful to also give consideration to the reasonableness of any recommended adjustments. If there is a good argument as to why a particular step is not reasonable, that will help mitigate the risk if an employment tribunal was later to take a different view on whether the statutory definition applies.

On 6 May, the ONS published a report on long Covid in which they estimated that 1.8 million people living in private households in the UK were experiencing self-reported long Covid as of 3 April 2022. Long Covid symptoms were adversely affecting the day-to-day activities of 1.2 million people. It is likely that most employers will have employees with long Covid in their workforce so they should be aware that it could be a disability and they should take steps to support employees who have it.