As we start to see the back of the Covid-19 pandemic, there is still a longstanding impact in the form of “Long-Covid.”
What is long Covid?
For some, Covid-19 has caused long term symptoms. The NHS explains that those long term symptoms can include extreme tiredness and shortness of breath, as well as tinnitus and earaches and problems with memory or concentration. Typically, Covid recovery can take up to 12 weeks but long covid is where the symptoms remain for much longer.
There are specialist rehabilitation centres and research centres being set up to support those with long covid.
There is very little known about long-Covid but one thing that is clear is that the effects seem to come and go; some days the person might seem well, but on others, their symptoms can be worse, and they may need more sickness absence as a result.
Is it a disability?
Under the Equality Act, a disability is defined as a physical or mental impairment that has a ‘substantial and long-term negative effect on a person’s ability to do normal day-to-day activities.
‘Long term’ means the impairment:
- has lasted or will last for at least 12 months
- can come and go or is likely to last for the rest of the person’s life
Long Covid is still a new illness and, ultimately, we can’t say yet whether it will meet the long-term definition. It’s clear that it can substantially impact people’s day to day life, and it can come and go for a least several months. It will need to be assessed on a case-by-case basis as to whether each person’s length of symptoms means that they qualify as a disability.
Another factor is that the effect of long-Covid could cause other long-term impairments.
Are there other discriminatory elements?
The other thing to bear in mind is that long-Covid more severely affects older people, ethnic minorities and women. Employers must avoid indirectly discriminating on the basis of age, race, or sex, so should really avoid any blanket long-Covid policies for this reason.
How should employers support those suffering with long Covid
The main thing is to support them, as you would with anyone else on a long-term absence. Making sure you know how to contact them during their absence and having conversations about how to support them if they are at work or during their return to work, is very important.
Broadly, it’s a good idea for the employer to focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability. Because the condition may yet, in some people, amount to a disability, it is important for employers to tread carefully. It will be worth discussing reasonable adjustments to facilitate a return to work, such as a phased return or part-time work. Occupational health may be able to advise on appropriate support, so employers should seek their employee’s consent to be referred, where necessary.
Where employees are unable to work or may have been on long-term sickness, and if occupational health or the employee is unable to provide any guidance on suitable adjustments to return, an employer may ultimately be able to consider dismissing under a capability procedure.
For now, though, the overriding message has to be one of support; Covid, and long Covid, is an unexpected illness and employers should be keen to support employees in their recovery, especially as we all learn more about the possible treatments for this condition.
Long Covid is still a new illness and, ultimately, we can’t say yet whether it will meet the long-term definition. It’s clear that it can substantially impact people’s day to day life, and it can come and go for a least several months. It will need to be assessed on a case-by-case basis as to whether each person’s length of symptoms means that they qualify as a disability.
Another factor is that the effect of long-Covid could cause other long-term impairments. in the recent case of Burke v Turning Point Scotland, the Scottish Employment Tribunal ruled that the Claimant suffering from long Covid did meet the definition of a disability under the Equality Act, and he was therefore able to pursue his former employer for disability discrimination. However, this is not binding on other tribunals and the position remains that each claim would be assessed on a case-by-case basis.
Did you know we provide outsourced HR services to businesses?
Using Thrive’s HR services makes your life easier; we provide you with quick and most importantly, correct HR advice so that your staff management is stress-free and sufficient. We take care of everything. From drafting contracts and handbooks tailored to your business to advising and supporting you through redundancies. There is no limit to our knowledge: if you have an HR question, our qualified solicitors have the answer for you. We are always one phone or email call away.
Why should you outsource your HR services to solicitors? Getting your HR services from a solicitor means, should a case ever proceed to tribunal everything we have ever discussed is protected by Legal privilege meaning all conversations are protected. Whereas if you were to use an HR consultant, all conversations and documentation regarding that employee would be disclosable in the tribunal.
Get in touch today to invest in your business and make your HR stress free.
Disclaimer…
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk
