Long Covid and Disability Discrimination

The National Institute for Health and Care Excellence describes Long Covid as symptoms of Covid-19 continuing for more than 12 weeks from infection.

The current NHS list of Covid-19 symptoms includes, but is not limited to:

• extreme fatigue
• shortness of breath
• persistent cough
• chest pain or tightness
• problems with memory or concentration
• a loss of or change to the senses of taste and or smell
• a high temperature
• headaches
• sore throat
• muscle or joint pain.

It is currently estimated that around two million people in the UK have had Long Covid or are currently suffering from it.

Does Long Covid constitute a disability for discrimination purposes?

It is fair to say that a prolonged period of experiencing any or a combination of these symptoms has the potential to have a detrimental effect on an employee’s ability to work, but does Long Covid constitute a disability for discrimination purposes?

The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term detrimental effect on a person’s ability to carry out normal day-to-day activities.

Whether the impact of the Long Covid is substantial or has a long term detrimental effect is likely to need to be considered on a case by case basis, as Covid and its long term effects are, on the grand scheme of things, relatively new and each person’s experience of the symptoms will be different.

Different accounts and differing durations of ‘Long Covid’ means that it is difficult to say for certain whether or not Long Covid will be treated as a disability under the Equality Act. Each individual’s experience will need to be looked at carefully.

What can you or your business do to assist employees suffering from Long Covid?

Discrimination law imposes a duty on employers to make reasonable adjustments to assist disabled employees in certain circumstances.

Although it is unclear whether or not Long Covid will amount to a disability in law, making reasonable adjustments may be a good way of deterring any disability discrimination claim and, showing the business’ support of employees.

What will be required will need to be considered on a case by case basis, but some examples may include taking a flexible approach to working hours and/or location, providing additional equipment, increased breaks, if appropriate and avoiding working patterns such as early morning/late night working or back to back meetings.

Even where the Long Covid has not amounted to a disability, making even temporary adjustments for employees who remain unwell can help them return to work more promptly, and promote a culture of wellbeing and loyalty.

Employers may feel it appropriate to make enquiries into the employee’s symptoms and the likely duration of them, especially bearing in mind that symptoms of Long Covid can change over time and it may be wise to obtain an opinion from Occupational Health.

Occupational Health will be able to identify particular support that may be needed by the employee at different times during their recovery.

Employers should be mindful of treating Long Covid sufferers less favourably compared with other employees, e.g. disciplinary action for absences (where this absence has arisen due to the employee’s condition) in case their Long Covid amounts to a disability.

Although it is unclear whether or not Long Covid is a disability for the purposes of discrimination law, employers must also have regard to other protected characteristics and ensure that their procedures and policies are not discriminatory on the basis of indirect discrimination. For example, according to the Office of National Statistics, Long Covid has been found to have more of an effect on older persons as well as having a high prevalence among ethnic minorities.

Discrimination claims against employers can have very negative effects in terms of compensation, employee confidence and morale, and negative publicity and so care should be taken when dealing with employees suffering from Long Covid.

Contact our Employment solicitors today

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.