With more data now available it is becoming increasingly clear that, depending on the severity and duration of symptoms, some workers suffering from long Covid may be disabled and protected from discrimination under the Equality Act 2010.
What is long Covid?
The recovery period for coronavirus varies from person to person and some people continue to suffer symptoms weeks or months after the infection has gone. Those who experience symptoms for several weeks or months after the infection is gone are said to be experiencing 'long Covid'.
The NHS lists a number of symptoms of long Covid on their website. These include extreme tiredness, shortness of breath, chest pain or tightness, problems with memory and concentration, difficulty sleeping, heart palpitations, dizziness, pins and needles, joint pain, depression and anxiety, tinnitus, earaches, feeling sick, diarrhoea, stomach aches, loss of appetite, a high temperature, cough, headaches, sore throat, changes to sense of smell or taste and rashes.
Research by the Office for National Statistics suggests that around one in ten coronavirus sufferers have symptoms that last twelve weeks or longer. Much is still unknown about how the virus affects people over time and the World Health Organisation Regional Offices for Europe recently stated that their understanding on how to diagnose and manage long Covid is still evolving.
Is long Covid a disability?
A person has a disability under the Equality Act 2010 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 are essentially four aspects to this test:
- Does the individual have a physical or mental impairment?
- Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial ('more than minor or trivial')?
- Is that effect long-term? An impairment will have a long-term effect if it has lasted 12 months; it is likely to last for 12 months; or it is likely to last for the rest of the life of the person affected (judged at the time of the alleged discrimination).
It is possible that some individuals suffering from long Covid may be disabled for the purposes of the relevant legislation. Whether or not any individual is considered disabled for these purposes will depend on the facts of each case and, in particular, the symptoms or combination of symptoms the person has; the impact those symptoms have on that individual; and how long the symptoms have lasted for and/or are likely to last.
What are the risks for employers if employees are suffering from long Covid?
With the virus having now been in circulation for over a year, employers should be mindful of the fact that employees suffering from long Covid could potentially have a disability depending on the severity and duration of their symptoms; and/or that long Covid might 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 basis with support from occupational health.
The equality legislation protects all disabled workers against discrimination and employers must make reasonable adjustments where a disabled job applicant or worker is placed at a substantial disadvantage compared with people who are not disabled. What adjustments are reasonable will depend on a number of factors including cost and effectiveness but might include altering working hours; transferring duties; or continuing to allow the employee to work from home.
Employers may also face a disability discrimination claim if they directly or indirectly discriminate, discriminate because of something arising as a consequence of a disability, victimise or harass a disabled worker. There is therefore a discrimination risk if a long Covid sufferer is treated less favourably either because they have long Covid or, for example, because of their sickness absence level or inability to carry out their duties.
It is, therefore, important to engage with employees experiencing symptoms of long Covid; provide support and access to occupational health; and raise awareness of the issue with managers and remind them of the need to apply policies in a non-discriminatory way.
Workbox by Brodies
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