Disabled employees should not be denied the ability to engage in strategies and mechanisms which help to cope with the effects of their condition simply because they inconvenience other staff. Paul Burton looks at a recent case where disability discrimination was disputed.
Long Covid: A Novel Disability?
Long Covid made its way into the headlines in October with reports of the long-term debilitating effects suffered by those experiencing sustained symptoms.
What is long COVID?
Long Covid is so far poorly understood and there is, as yet, no defined pathology. A recent peer-reviewed investigation exploring the experiences of UK sufferers was led by Oxford University. At this stage it found that experiences differ hugely from person to person and that there is no obvious correlation between existing medical conditions and the chances of developing this long-term condition.
It is possible that those suffering from long-term effects of the coronavirus may be classified as disabled for the purposes of the Equality Act 2010.
What is the definition of a disability in the workplace?
A disability for Equality Act purposes is a much lower burden than for medical purposes or even what the average person might mean when they used the word disabled.
Equality Act 2010 definition of disability
For the Equality Act, the definition is a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day to day activities.
This loose definition allows the tribunal to conduct a fact-based assessment in each individual case which appears before it. Any case in relation to Long Covid is therefore going to take the individual into account.
Long covid in the workplace
As medical practitioners increasingly recognise Long Covid, employees will be increasingly able to satisfy the impairment element of the test.
The impact on them personally is what will then be used to assess the effect on their normal day to day activities. These activities also have a relatively low threshold and relate to the “things some people do on a regular or daily basis” such as walking or travelling by other transport, carrying out household tasks and engaging in social activities.
Depending on the individual’s role, their ability to carry out their job may also be taken into account.
Is Long Covid a substantial or long-term impairment?
The ‘substantial’ element of the test means that the effect must be ‘more than minor or trivial’. This component of the test will also be very fact-specific as what is substantial to one person may be very different to another. Indeed, the effects of Long Covid generally will likely vary from person to person.
The media is currently reporting examples of people struggling to walk as a result of their symptoms and that is very likely to meet the test.
Finally, the effect of the condition must be long-term and this is defined as either lasting or likely to last for a period in excess of 12 months.
We know that the coronavirus has already been around for some 12 months but it is difficult to say at this stage whether Long Covid will satisfy this element of the test.
So, is Long Covid similar to ME or CFS?
Symptoms appear to fluctuate based on current reports but that is not a barrier to a condition being a disability. The condition is currently being compared to other conditions such as ME and Chronic Fatigue Syndrome (CFS), both of which are capable of constituting a disability for Equality Act purposes.
It is feasible that long-Covid may fall within the definition.
So, is Long Covid classed as a disability?
An individual severely affected by Long Covid may well be disabled under the Equality Act.
Employers will need to be aware that, just because someone is capable of doing their job, they are not precluded from falling within the definition and therefore being protected from discrimination and imposing on the employer the duty to consider and potentially make reasonable adjustments.
Long COVID: What do employers need to do?
It is probably safest to assume that Long Covid could be within the definition when making workplace decisions and to act accordingly. In most cases this will mean:
- Consulting with the individual about the effects of the illness;
- Seeking appropriate medical advice either from the employee’s own GP or an independent clinician;
- Ensure managers are trained in the sickness absence policies and how these related to absences which could arise from a condition which is a disability; and
- Be prepared to consider appropriate adjustments to accommodate the effects of the condition if it is a disability.
COVID advice and guidance: Stay up to date
Throughout the pandemic, our team of bright lawyers have been publishing guidance on the ever-changing regulations. The timely updates are published on our website in plain English and shared on our social media channels.
To be the first to hear about any updates, you can register for our free newsletter (and choose the topics you want to hear about) here.
Business solicitors in Bournemouth, Christchurch and Ringwood
At Frettens, we offer a free initial appointment for all new clients. This usually takes place over a coffee with one of our bright lawyers at our modern, conveniently located offices, but can also be over the phone or video call.
If you’d like to speak with one of our bright, friendly team, you can fill in the form on this page or give us a call on 01202 499255.