We have been living with Covid for over two years and it is still having ramifications for employers including high rates of sickness absence, health and safety implications, hybrid/homeworking and flexible working requests but also the challenge of how to support employees who, having had Covid, are now experiencing symptoms of long Covid.
The Office for National Statistics estimates that more than 1.3 million people in Britain (that is 1 in 50) were suffering from post-Covid syndrome in December 2021, with one in four employers (26%) now including long Covid among their main causes of long-term sickness absence, according to research carried out by the CIPD.
A material question for many employers in supporting employees with long Covid is whether these employees could (and perhaps should) be considered as disabled for the purposes of protection against discrimination, under the Equalities legislation (the Equality Act 2010 (EqA 2010)).
To claim disability discrimination, an individual must demonstrate that they have or had a disability at the relevant time. The definition of disability is set out in Section 6 and Schedule 1 of the EqA 2010 and states as follows: A person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
There is no definition of what a physical or mental impairment is, and it is a matter for the tribunals to decide based on the evidence in each case. It is also well-established that there does not need to be a medical diagnosis for there to be an impairment because it is the effects of the impairment that are relevant in the determination of a disability, not the cause.
The effects of long Covid are still being researched but the World Health Organisation (WHO) has said (July 2021) that three of the most common symptoms include shortness of breath, cognitive dysfunction (which people call brain fog), as well as fatigue. However, there have been more than 200 symptoms reported in patients such as chest pain, trouble speaking, anxiety or depression, muscle aches, fever, loss of smell and loss of taste.
The effects must be substantial adverse effects and long term.
To be a substantial effect, it has to be “more than minor or trivial” and recurring or cumulative effects of an impairment can mean it is substantial. Employers also need to be aware that, if an employee is taking measures to treat or correct an impairment (medication or counselling), a tribunal will still consider the impairment to have a substantial effect if it is likely to have that effect, without those measures being taken.
The effect of an impairment will only be regarded as long term if:
- it has lasted for at least 12 months;
- it is likely to last for at least 12 months; or
- it is likely to last for the rest of the life of the person affected at the relevant time, that is at the time the alleged discriminatory act or acts were committed.
“Likely” here means that it could well happen, but we will only know with time and further research whether the effects of long Covid are going to be life-long.
Finally, the activities impacted by the individual’s physical or mental impairment must be “normal“. The EqA guidance suggests normal day-to-day activities are “things people do on a regular or daily basis”, including:
- Shopping
- Reading and writing
- Having a conversation or using the telephone
- Watching television
- Getting washed and dressed
- Preparing and eating food
- Carrying out household tasks
- Walking and travelling by various forms of transport
- Taking part in social activities
They do not include specialised activities such as playing a music instrument or playing a particular sport to a high level of ability, where specific skills/abilities are needed.
In Rayner -v- Turning Point and Others UKEAT/0397/10, the Employment Appeal Tribunal (EAT) commented that advice from a GP to abstain from work “is in itself evidence of a substantial effect on day-to-day activities… day-to-day activities include going to work. If he is medically advised to abstain and is certified as such so as to draw benefits and sick pay from his employer, that is capable of being a substantial effect on day-to-day activities.” The EAT went on to note that whether the evidence supports that conclusion is a question for the Tribunal.
In many cases of long Covid, the Tribunal will be in a better position now, some two years after the start of the pandemic, to assess whether the effects of this impairment amount to a disability for discrimination purposes, and specifically whether the effects have lasted or are likely to last for 12 months. The recent Employment Tribunal decision of Matthews –v- Razors Edge Group Limited (2409756/2020) considered this issue in relation to an employee who resigned in June/July 2020, making claims, amongst others, of disability discrimination.
At the relevant time (June 2020), the Claimant was being treated with asthma inhalers and other medicines, including strong painkillers and antibiotics, and gave evidence that since she contracted Covid 19 in or around late March 2020, she had found it difficult to lift heavy shopping bags because of numbness in her hands, could not do her own housework, found it difficult to cook, and was unable to stand for any length of time because of low oxygen levels. She also experienced a deterioration in her mental health due to the original illness and subsequent symptoms. She was described by her treating doctors as post-Covid, but no medical prognosis was given about the length of these symptoms, understandably so when Covid 19 had only arrived in the UK a few months earlier.
Due to the symptoms with which the Claimant presented at the material time, the Tribunal concluded that she was suffering from a physical impairment which was substantial in nature. Even though there was no medical prognosis available about the duration of the physical symptoms, the Tribunal applied the decision of SCA Packaging -v- Boyle [2009] UKHL 37 to consider whether those symptoms could well last longer than 12 months and concluded that they could. The Claimant was considered to be disabled at the material time.
This is a first instance decision on long Covid and, as always, the assessment of whether an employee with long Covid is disabled needs to be done on a case-by-case basis. It may be that this point on whether the symptoms of long Covid have lasted or may last for at least 12 months will be less of an issue, now we have more information/more time has elapsed.
As a final point, it is interesting to note that the Equality and Human Rights Commission (EHRC) have recently suggested that employers should treat long Covid as a disability. The Trades Union Congress (TUC) (and other bodies) have gone further and asked the Government to classify it as a disability. Because symptoms vary and can fluctuate, it is not yet certain whether all cases of long Covid will meet the legal definition of disability and it therefore seems unlikely that the Government will take this step. Nevertheless, employers may well be advised to take notice of the EHRC suggestion and act accordingly to minimise risk and ensure that they do not fall foul of the Equalities legislation.
