Long COVID – Implications for Employers.

The emergence of long COVID over the last year, has led to questions about whether it will be classed as a disability, and if so, what precautions employers should take to protect themselves and their employees.

What is long COVID, and is it a disability under the Equality Act 2010?

There is so far a lack of medical clarity about what long COVID is, its effect and how long it might last. The effects are often analogous to post-viral fatigue, and are being compared to those who suffer from myalgic encephalomyelitis (ME). Particularly difficult is that in both, these symptoms tend to come and go, with days of normal functionality, and days debilitated by the condition.

To be classed as a disability under the Equality Act, it must meet a four part test:

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  • Is that effect substantial?
  • Is that effect long-term?

The first three questions will depend on a case-by-case basis regarding the symptoms exhibited and how severe they are. It seems likely that the ET will consider long COVID to meet these tests if the effects are severe enough.

However, this is dependent on the last test being made out. Long term is defined as lasting, or likely to last, 12 months or more. As of yet, there has been no determination if the effects of long COVID do or can last as long as 12 months. However, employers are advised to act as though such a call may be made, and ensure that they do not treat any employees with long COVID unfavourably because of it.

Will an employee with long COVID who is dismissed, be eligible for an unfair dismissal claim?

An employee who has long COVID may be eligible for an unfair dismissal claim if:

  • they meet the qualifying period requirements;
  • the dismissal was not for one of the potentially fair reasons;
  • and the employer acted reasonably.

To qualify for an unfair dismissal claim (unless an automatically unfair ground applies), the employee must have been employed by the employer for two years continuous service. 

The potentially fair reason applicable here would likely be dismissal on grounds of capability for ill-health. This usually arises after a long period of absence that have a significant detrimental impact on the employer’s business and the employee’s performance. An employer must follow fair procedure for the dismissal to be deemed fair. In circumstances of ill health, this involves establishing a true medical position and consulting with the employee before deciding whether to dismiss.

If the employer is deemed to act unfairly, and does not carry out reasonable investigation into the sickness and its effects, it may amount to a claim for unfair dismissal. It must be noted, that other avenues for unfair dismissal may also be available to an employee.

Will an employee with long COVID who is dismissed, be eligible for an unfair dismissal claim?

If long COVID is deemed to be a disability as defined above, an employee may be eligible for any discrimination claim under the equality act.

  • Direct discrimination is where an employee is treated less favourably than another would be because of their disability.
  • Discrimination arising from disability is where an employee is treated unfavourably because of something arising in consequence of their disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim

Therefore employers should avoid treating their employee unfavourably because of their long COVID. This includes any detrimental treatment because of long term absences.

The employee may also have a right to reasonable adjustments being made to allow them to work, which in the case of long COVID, may include working from home, or flexible working arrangements.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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