Two million people in the UK are living with long-term symptoms of Covid-19 and some employers have employees that are struggling.
Alexandra Farmer, head of team and a solicitor at WorkNest, says there is a growing awareness around long Covid as a condition. She says that while organisations are trying to understand the right way of handling employees with long Covid, ‘situations involving employees with medical conditions take some time to play out, and employers are at a point where things cannot go on forever.’
A disability?
Some feel that long Covid is a disability. However, the Equality and Human Rights Commission stated in May, 2022, that it should not be automatically classified as a disability. This is because, as Farmer says: ‘Only a few conditions are deemed disabilities under the Equality Act 2010 and the Equality Act 2010 (Disability) Regulations 2010.’
In detail, section 6(1) of the Equality Act 2010 states ‘a person has a disability if (a) they have a physical or mental impairment and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.’
Farmer notes that there is no legal definition of physical or mental impairment, and substantial means more than minor or trivial. As for long-term, that means 12 months or more.
In terms of day-to-day activities, she says these ‘are things people do on a regular or daily basis such as shopping, reading and writing, getting washed and dressed, and preparing food and eating.’
In defining normal daily activities she says this can include interacting with colleagues, following instructions, using a computer, driving, preparing written documents and keeping to a timetable.
As Farmer explains: ‘disability is one of nine protected characteristics, so if an employee is deemed disabled, subjecting them to any detriment on this basis could leave an employer exposed to an employment tribunal claim.’
Employment tribunal cases on long Covid
A number of cases have found their way to an employment tribunal. The first Farmer highlights is Matthews v Razors Edge Group. It found that the claimant suffered from a substantial physical impairment and that it would be reasonable to conclude it would last longer than 12 months, making the claimant disabled.
Similarly, the second, Mr T Burke v Turning Point Scotland, found the claimant met the definition of disability as the substantial adverse effect of his condition was likely to be long-term.
Farmer comments: ‘These cases demonstrate that tribunals recognise that long Covid may amount to a disability.’ However, she adds: ‘They shouldn’t be taken as a precedent; the assessment of whether an employee is disabled needs to be done on a case-by-case basis.’
Still, given the potential risks, she warns employers to ensure they ‘take the necessary steps to explore the extent and impact of an employee’s symptoms… they can start by seeking their consent to commission a GP or occupational health report to investigate the condition further and assess whether they are a disabled person.’
Reasonable adjustments
If an employee has long Covid, their symptoms may affect them at work. If an employee raises concerns generally, or as part of a return-to-work discussion, then, as Farmer advises: ‘Employers must explore their current symptoms and evaluate how this may impact them at work; they may require adjustments on a temporary or permanent basis.’
In this situation, she says: ‘Employers must make those reasonable adjustments to help disabled employees carry out their roles effectively. Potential adjustments for those suffering are almost limitless and will depend on the individual’s symptoms.’
Making a dismissal
If this does not work, the employer may want to dismiss.
There is no prescribed time set down in law before a dismissal can be made, according to Farmer. She does say: ‘While the impact of absence can be great from a workload and cost perspective, and may even cause production or delivery issues, it’s essential not to be too hasty in these situations.
‘Unless the early medical evidence is clear that a return to work will not be possible for months or even years, a general rule of thumb would be that an absence of around six months is required before dismissal is a reasonable potential outcome.
‘If no adjustments can be made and it is unclear when or if the employee will be able to return to work, then the next stage will be to progress with a medical capability procedure that may result in termination of the employee’s employment.’
Farmer does caution that if the employee benefits from permanent health insurance, the employer will have to leave them employed and in receipt of that insurance rather than dismissing them. It is a similar story with ill-health early retirement.
Summary
Long Covid is here to stay. While the tribunals will further refine the law, it should be remembered that while employees have rights, employers have obligations.