Nathan May is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan considers recent commentary and case law on Long - COVID and the Equality Act 2010
Some individuals who contract COVID – 19 have been known to suffer from “Long COVID”. The NHS website lists various symptoms of those who suffer with Long COVID including fatigue, shortness of breath and problems with memory. What is particularly difficult is that understanding of Long COVID is in its infancy with little certainty as to how long the symptoms could last for any one person.
This lack of knowledge can be particularly difficult when an employer considers its obligations under the Equality Act 2010 (EA 2010) in respect of disabilities. Disability is defined in section 6 of EA 2010 as “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. An impairment will only have a “long-term” effect if “it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected.”.
Because of the variety of symptoms and unpredictability as to the prognosis of this condition, it is uncertain whether Long COVID meets this definition.
What has been suggested to deal with this uncertainty?
Due to this uncertainty, the TUC called for Long COVID to be codified as a “deemed disability” under the EA 2010, meaning there would be no requirement to test whether an individual meets the aforementioned definition. However, there has been no indication from the Government that such reform will be enacted.
Therefore, it will be a matter of fact in each individual case as to whether an individual’s symptoms meet the definition in section 6. The Equality and Human Rights Commission (EHRC) caused controversy in May 2022 when it tweeted that without case law on this subject, it could not recommend treating Long COVID as a disability. This was later equivocated to the more neutral advice that “employers [should] continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases”.
Clarity from the Employment Tribunal
However, The Employment Tribunal has recently provided some much-needed clarity following its decision in Burke v Turning Point Scotland. Mr Burke was dismissed by reason of his ill health in August 2021, having first contracted COVID – 19 in November 2020. Mr Burke experienced severe headaches and fatigue which prevented him from returning to work. His symptoms would briefly improve before relapsing. As a preliminary issue, the Employment Tribunal was asked to conclude whether Mr Burke’s symptoms met the definition in section 6.
Despite two occupational health reports obtained by Turning Point Scotland stating that Mr Burke was fit to return to work, the Employment Tribunal found that Mr Burke was disabled for the purposes of the EA 2010. The Employment Tribunal accepted the Claimant’s evidence as to the debilitating impact Long COVID had on his ability to carry out day-today activities and that it could well be that his symptoms lasted for at least 12 months.
Why this is important for employers now
Employers should be wary of the possibility that their staff who have Long COVID may be disabled and should consider their duties under EA 2010, particularly the duty to make reasonable adjustments. What adjustments may be considered reasonable is, again, a question of fact, but considering the symptoms of Long COVID, it may involve adjustments to the hours of work of the worker, altering their duties or making homeworking available.
