In the absence of clear legislative measures to protect people suffering with long Covid, the head of employment policy at the Equality and Human Rights Commission (EHRC’) has advised that the “best approach” for employers to take is for symptoms of long covid in adults to be treated as if they had a disability under the Equality Act 2010. As such, the EHRC advises employers to consider taking measures such as flexible working policies and reasonable adjustments to duties for members of staff displaying long Covid symptoms.
Whilst it is clearly important to consider the EHRC advice in the context of meeting the needs of staff and creating a constructive and safe work environment, it is important to remember that this does not have the effect of altering the law in relation to disability – nor does it automatically make symptoms of long Covid in adults a disability in all cases.
The legal definition of disability can be found at Section 6 of the Equality Act 2010 (EqA 2010). A disability is defined as a physical or mental impairment that has a substantial and long-term effect on the individual’s ability to carry out normal day-today activities. For these purposes, ‘long-term’ means that the impairment has lasted or is likely to last for at least 12 months.
Some impairments are automatically treated as disabilities under the EqA 2010, including cancer, MS and HIV. The EHRC’s advice suggests that employers treat long Covid in the same way as they would these automatic disabilities. Employers may choose to act in this way, however symptoms of long Covid in adults is not an automatic disability under the EqA 2010.
Individuals suffering from long term Covid effects will therefore need to go “back to basics” and show they meet the definition set out in Section 6 EqA 2010. It is likely that many sufferers would be able to show a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. Whether the effects are substantial and long-term are likely to be more difficult questions to answer: the more severe symptoms of long Covid, including extreme fatigue, are comparable to impairments that have been considered disabilities in the past, such as chronic fatigue syndrome and ME. Although medical evidence may be important as evidence, these questions are ultimately of a legal nature and subject to the judgment of the Employment Tribunal.
In terms of practical lessons, whilst symptoms of long Covid in adults may not (yet) be an automatic disability under the law, employers should still take note of the EHRC’s comments. The short answer is that it shouldn’t be treated differently to any other medical condition that depending on severity could amount to a “disability” under s.6 EqA.
Of particular benefit to employers would be careful consideration of adjustments that could be made to the employee’s work practices in order to help alleviate long term Covid effects, such as continuing to work from home, reduced working hours, or reduced targets. Consultation with occupational health or the employee’s GP can give the employer a useful steer as to what adjustments are likely to be beneficial.
Making adjustments can help to reduce the time the employee has to take off of work whilst limiting the risk of a Tribunal claim in the future. The EHRC also reminds employers that such adjustments can be time limited, which can be helpful when dealing with temporary conditions like long Covid.
Blog written by Michael Green, Trainee Solicitor at didlaw.
