Is Long Covid a disability under the Equality Act 2010?

What is a disability?

Following the abolition of employment tribunal fees in mid-2017, there has been a steep rise in disability discrimination claims. The term “disability” is defined in the Equality Act 2010 as a “physical or mental impairment which has a substantial and long-term adverse effect” on the individual’s ability to carry out normal day-to-day activities. An impairment is deemed to be long-term if it has lasted (or is likely to last) at least 12 months. Some conditions are automatically deemed to be a disability, such as multiple sclerosis, HIV and cancer.

When can a disability discrimination claim be made?

Claims for disability discrimination can occur where an employee has been treated a certain way because of their disability or because of something arising as a result of their disability. A claim can also be made if an employer applies a practice which indirectly discriminates against an employee who has a disability, or if the employer has failed to make a reasonable adjustment.

Liability can only arise if the employer knew or ought reasonably to have known about the employee’s disability. In determining this question, the employment tribunal will look at all the information available to the employer. In some circumstances, it may be difficult for the employer to argue successfully that it could not reasonably have known of the employee’s disability, even if it is not self-evident or only impacts upon certain duties or responsibilities.

What is Long Covid?

There is emerging evidence showing that some individuals who contract COVID-19 cannot shake off the effects of the virus several months after initially falling ill. These individuals are said to have post-COVID syndrome, commonly referred to as “Long Covid”. Symptoms of Long Covid are wide-ranging and fluctuating, and can include generalised pain, breathlessness, chronic fatigue, “brain fog”, persisting high temperature, anxiety and stress.

The latest ONS data shows that over the four-week period ending 6 March 2021, an estimated 1.1 million people in private households in the UK were experiencing self-reported Long Covid.  For employers, there are significant challenges in not knowing how long an employee’s Long Covid symptoms are going to last and whether to treat the employee as disabled under the Equality Act.

What does the Equality and Human Rights Commission say?

On 7 May 2022, the Equality and Human Rights Commission published a tweet advising that, in the absence of case law or scientific consensus, they did not recommend that Long Covid be treated as a disability (for the purposes of the equality legislation).

This tweet received some negative commentary as those suffering from Long Covid will have varying symptoms which will impact differently upon an individual’s ability to carry out normal day-to-day activities.

Presumably in response to the adverse publicity, the EHRC has now updated its position, publishing a revised statement on 9 May 2022 confirming that they cannot say that all cases of Long Covid will fall under the definition of disability in the Equality Act 2010. As noted above, each case will turn on its own facts and the impact of the condition upon the individual. The EHRC now recommends that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases. This clarification was welcome and employers should continue to assess employees with Long Covid on an individual and case by case basis.

How can employers avoid disability discrimination claims?

Whilst a complex area, some useful steps for employers to take to raise awareness and help avoid disability discrimination claims include:

  • Encouraging an open dialogue with employees regarding physical and mental health to understand whether there are any reasonable adjustments which can be made (this may include implementing a Mental Health Policy for example);
     
  • Implementing an Equal Opportunities Policy and training all staff in the organisation about equality and the legal protections which exist against discrimination; and
     
  • Ensuring that proper enquiry is undertaken before any disciplinary proceedings to determine whether the alleged conduct may relate to a disability.

Contact our Specialist Employment Team if you wish to discuss any aspect of this blog. 

Katie Hendry, Solicitor: khe@bto.co.uk / 0141 221 8012

Tags