Long Covid and disability discrimination: advice for employers

Long Covid is a relatively new illness which is still not fully understood. The National Institute for Health and Care Excellence has defined long Covid as ‘signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body’.

Commonly experienced symptoms include a cough, breathlessness, fatigue, palpitations, ‘brain-fog’ and joint pain. While the majority who catch Covid-19 recover within approximately 12 weeks, it is thought that over one million people in the UK are experiencing prolonged side effects.

Long Covid has been found to affect older people, ethnic minority groups and women more severely.

Long Covid – a disability?

Under the Equality Act 2010, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to do normal day-to-day activities.

Whilst there have not been any employment tribunal rulings yet to determine whether or not long Covid could be deemed a disability, the question of disability is likely to be judged on a case-by-case basis depending on the severity of an individual’s symptoms.

In order for an impairment to be long term, its effects must have lasted for at least 12 months or be likely to last for at least 12 months or for the rest of the individual’s life. The effect of an impairment can come and go during that time.

A difficult situation for employers

This may make it difficult for employers to know whether an employee’s long Covid meets the definition of disability. It may be difficult for medical experts to classify symptoms as long Covid due to their fluctuating nature and the difficulty of predicting for how long those symptoms might last – unless the individual has already been suffering from ongoing symptoms for over one year.

If an employee is able to claim that long Covid amounts to a disability under the Equality Act, employers who do not handle these cases correctly leave themselves open to potential claims of discrimination and, potentially, unfair dismissal.

Our recommendation

Long Covid is a new illness and is still not understood fully. Given the uncertainty surrounding it, it may be wise for employers to treat those with long Covid as potentially disabled and take appropriate advice on supporting that employee through making reasonable adjustments.

This will reduce the risk of disability discrimination claims should, in the future, long Covid be proven to satisfy the definition of a disability.

How Moore Barlow can help

If you or your business requires expert advice on this or any other employment related subject, please contact our expert team of employment lawyers.