Long Covid and disability discrimination

Long Covid has become a growing concern for employers, with a recent survey reporting that 2 million people living in England are suffering with long Covid symptoms. How should employers deal with staff with long Covid? What are the legal risks and what support might employees need?

The Equality Act 2010 defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities. We know from government guidance that 'long-term' means twelve months or more. 

Under the Act, employees cannot be treated less favourably than others or placed at a disadvantage by their employer because of disability. 

Long Covid usually lasts for weeks or months after the initial infection, although it has been reported to last for up to a year in some cases. Long-term symptoms range from memory loss, shortness of breath and fatigue to chest pain and insomnia.

Expert advice 

The TUC has called for long Covid to be recognised as a disability under the Equality Act and for the classification of Covid-19 as an occupational disease. This would allow sufferers of long Covid to be legally protected from discrimination by their employer, on the basis of their disability. Employers would also have to make reasonable adjustments that remove, reduce or prevent any disadvantages to any employees with long Covid.

The government has not yet responded to the TUC’s recommendations. However, a government spokesperson has urged employers to consider reasonable adjustments in relation to staff with long Covid. This is also the approach recommended by Acas, which has published guidance on how to manage employees with long Covid.

Employers should be alive to the fact that, while employees may struggle to bring a claim of disability discrimination due to long Covid, there is the potential for them to bring other claims where they have other protected characteristics. Long Covid has been found to have a more severe impact on older people, pregnant people, women and ethnic minorities. As such, employees may bring claims for indirect age, pregnancy, sex and race discrimination, if they are treated detrimentally by their employer as a result of having long Covid. 

The key to avoiding discrimination claims in all instances is to make reasonable adjustments to support employees with long Covid.

Checklist 

When looking to manage or support employees with long Covid, employers should consider the following:

• Consult with employees and discuss how best to support them.
• Where an employee has to take time off due to their symptoms, agree with them how and when contact will be made during their absence, to avoid them feeling isolated or unsupported. The employer should also ensure that the absent employee’s work is shared and covered appropriately amongst staff.
• Where an employee requires further support returning to the workplace after a long Covid related absence, consider getting an occupational health assessment or introducing a phased return to work.
• If it appears that the employee is no longer able to do their job, these concerns should be discussed with them and the employer should do all they can to help the employee before considering a capability procedure.

When it comes to long Covid, the law in this area is still evolving, but the potential for discrimination claims is a real risk. Discrimination claims can lead not only to employers paying thousands of pounds in legal costs, but also the risk of reputational damage. This should also not be underestimated; just because long Covid is not yet recognised as a disability, it does not mean employers will not be scrutinised for failing to support employees who suffer with its symptoms.

This article was originally published by The Caterer  

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions