Understandably, long Covid is a new term, with people only referring to the illness in recent months but still not necessarily understanding it fully.
Whilst this is entirely understandable, given long Covid is still a new illness, it is a condition that seems to be becoming more readily observed. Therefore employers must take the time to try and understand the nature of this illness and to take the necessary steps to support employees and their business as a whole.
Due to a recent decision in the Employment Tribunal, it is even more imperative that employers take the time to comprehend what long Covid means, the symptoms and how it can affect individuals and the implications of employees disclosing that they suffer from this condition.
What is long Covid?
Long Covid (sometimes referred to as “post-COVID-19 syndrome”) does not have an internationally agreed definition because the condition has only materialised since the start of the COVID-19 pandemic in 2020 and, therefore, the illness is not fully understood.
In essence, long Covid is a condition which affects those who have suffered from COVID-19 and continue to experience ongoing problems and side effects after the original infection has cleared. It can be challenging to determine if a person has long-Covid because of the lack of official definition and varying opinions on how long symptoms need to be present before a diagnosis is made.
However, general guidance from UK health professionals, including the NHS, refers to symptoms that continue past 12 weeks. Most people will fully recover from the initial COVID-19 infection by this time, provided another condition or cause cannot explain these symptoms.
Some of the most frequently recognised symptoms are as follows: -
- Extreme tiredness;
- Joint pain, including pins and needles;
- Changes to taste and smell;
- Brain fog - i.e., issues with memory and/or concentration;
- Shortness of breath;
- High temperature;
- Coughs and sore throat;
- Depression and anxiety; and
- Chest pain or tightness of the chest.
There is no specific standard test to diagnose an individual with long Covid. Therefore, when an individual presents with one or many of the above symptoms and is suspected of having long Covid, other conditions are often tested for before long Covid is diagnosed. In essence, as a default diagnosis in the absence of a confirmed alternative.
A Coronavirus Infection Survey carried out between 26 April 2021 and 1 August 2021 by the Office for National Statistics estimates between 3-12% of people catching COVID-19 still have symptoms 12 weeks after the original infection. This is based on data from 20,000 participants.
Ongoing reports from the Office for National Statistics show that COVID-19 remains prevalent to this day, with 2.5% of the population of England testing positive in the week ending 18 June 2022. Therefore, it seems that long Covid will impact businesses for some time, making it crucial that employers are clear on the term, the symptoms and the impact it could have on their employees.
Is long Covid classed as a disability?
Under the Equality Act 2010, a disability is defined as a physical or mental impairment which has a long-term and substantial adverse effect on a person’s ability to do regular day-to-day activities.
Due to the wide-ranging impact long Covid has on individuals, there was uncertainty as to whether long Covid could come under the definition of a disability. This has remained a debate for some time without any formal decision. However, following the recent landmark case of Burke v Turing Point Scotland, Mr Burke successfully argued in the Scottish Employment Tribunal that long Covid had rendered him disabled under the definition of disability in section 6 Equality Act 2010.
Mr Burke was a caretaker; he issued a claim against his former employer based on unfair dismissal and discrimination following his dismissal. Mr Burke had been unable to attend work for nine months due to suffering side effects from COVID-19, which he initially contracted in November 2020. Whilst the tribunal is yet to make a finding in respect of whether Mr Burke’s dismissal was unfair, the Judge hearing the claim has ruled that the tests for disability have been met and, therefore, Mr Burke was disabled for the period of the alleged discriminatory acts.
It is important to note that this decision does not mean that any sufferer of long Covid will be deemed disabled. The take-home message is that long Covid may amount to a disability. However, this judgement makes it clear that long Covid is an actual condition, which paves the way for those who suffer from the condition to potentially fall under the legal definition of disabled, and the protection from discrimination based on disability which consequently flows from this finding.
What does this mean for employers?
Since the ruling, there has been a lot of speculation as to what this judgement means moving forwards.
Due to the warnings of the potential surge for claims relating to long Covid, employers must ensure they have adequate and up-to-date policies and procedures regarding sickness absence and their capability procedures.
It is wise for employers to treat each employee who discloses they have long Covid or are found to potentially have long Covid through medical evidence (e.g., in an occupational health report) carefully based on their identified symptoms.
As noted above, a diagnosis of long Covid will not automatically qualify an employee for protection under section 6 of the Equality Act; each case will be assessed on its facts and merits.
Given the potential for high compensation levels in successful claims of discrimination coupled with a lack of uncertainty around the definition of long Covid, it would be wise for employers to consider making reasonable adjustments for individuals suffering from long Covid to mitigate the risk of such claims. This is because any medical evidence employers may obtain regarding long Covid may not be as reliable or conclusive as the evidence for disabilities from more established conditions.
It is not just disability discrimination that employers need to be mindful of, but any potential discrimination which could flow in respect of long Covid. For example, it is widely reported that long Covid has been found to affect certain groups of people more than others; those of an older generation, ethnic minorities and women are all affected. As age, race and gender are all protected characteristics under the Equality Act 2010, these groups are afforded protection from discrimination based on such characteristics. Employers must act reasonably, fairly and with caution when considering matters involving long Covid.
What other action could employers take?
It is important that employees are supported during any illness, including being signposted to potential internal and external support systems to assist with but also encourage them to be proactive in their recovery.
For example, to help those suffering from long Covid, several Covid Assessment Centres have been opened across England. People who may be suffering from long Covid can be referred to a centre for specific treatment depending on their symptoms. If an employee cannot work due to suffering long Covid, it may be helpful for them to try and attend a local centre during this time to see if their services can assist in the recovery.
If you need advice on policies and procedures or have questions about an employee with long Covid please contact our employment law team.