Can long COVID and the menopause be disabilities under the Equality Act?

A wide range of physical and mental impairments can amount to a disability under the Equality Act 2010. Two 'emerging disabilities' are long COVID and the menopause.

The definition of a disability

In terms of the Equality Act 2010, a person has a disability if they have a physical or mental impairment, and the impairment has a substantial ('more than minor or trivial') and long-term adverse effect on their ability to carry out normal day-to-day activities.

An impairment will have a long-term effect if it has lasted 12 months; is likely to last for 12 months; or is likely to last for the rest of the life of the person affected (judged at the time of the alleged discrimination).

Long COVID

The time it takes to recover from COVID-19 is different for everyone, and the length of recovery is not necessarily related to the severity of the initial illness. Long COVID is defined by the Office for National Statistics as 'symptoms persisting for more than four weeks after the first suspected coronavirus infection that were not explained by something else'. The latest ONS data shows that:

• An estimated 1.2 million people were experiencing self-reported long COVID symptoms as of 2 October 2021;
• Of these 20% first had COVID less than 12 weeks previously; 71% first had COVID at least 12 weeks previously; and 35% first had COVID at least one year previously;
• 65% stated that it reduced their ability to carry out daily activities;
• Fatigue is the most common symptom, followed by shortness of breath, loss of smell, and difficulty concentrating.

Some long COVID sufferers could potentially have a disability while others will not – it will depend on the severity and duration of the symptoms. Long COVID might also interact with existing medical conditions to create symptoms that may then amount to a disability.

This is something to keep under review and consider on a case-by-case: find out more in our earlier blog.

The menopause

A 2021 survey found that 23 per cent of women who have been unwell as a result of the menopause have left their jobs. 

Menopause discrimination is potentially covered under three main protected characteristics: age, sex and disability discrimination. Menopause itself isn't classed as a disability. Whether someone suffering from any of the 34 recognised symptoms of the menopause will be disabled under the Equality Act will depend - each case will need to be considered on its own facts with appropriate medical input. For example, difficulties with concentration, memory and fatigue were found to 'inevitably impact on the claimant’s ability to do many tasks throughout the day' in Daley v Optiva.

Reports published this week suggest that more women are challenging workplace menopause discrimination: menopause was cited in five employment cases in 2018, compared with ten in the first six months of 2021. Acas is also reporting an increase in menopause-related referrals. Until recently there had only been first instance tribunal decisions relating to menopause discrimination but, in October 2021, the Employment Appeal Tribunal decided on the issue in Rooney v Leicester City Council.

There have been various calls this year to provide more support for and understanding of the menopause, for example an inquiry led by the Women and Equalities Committee and an independent report 'Menopause and Employment'. With this focus on menopause in the workplace, we're likely to see a continued increase in claims.

Read about the key things employers can do to support employees experiencing the menopause in our earlier blog.

More information

For more information about anything discussed in this blog, please contact a member of the Brodies Employment and Immigration team.

Workbox by Brodies, our HR and employment law site, has:

• guidance on managing disability at work;
• FAQs on coronavirus;
• guidance on supporting employees experiencing the menopause and a template menopause at work policy; and
• a template equality and diversity policy and training materials.