Alexandra Besnard, Senior Associate Solicitor with Newcastle based specialist employment lawyers Collingwood Legal looks at the impact of Long Covid on the employment relationship for employers and employees.
Whilst the impact of the COVID-19 pandemic has been devastating, there is one aspect which has flown more under the radar: the potentially long-term impact of Covid-19 on some patients, known more commonly as “long COVID”. Whilst most people tend to recover reasonably quickly after contracting the virus, the Office for National Statistics found that during the week commencing the 22nd of November 2020, 186,000 people in England were suffering from symptoms of long COVID that had persisted for at least five weeks or more. The impact and effects of long COVID are still uncertain and only time will tell how many people are affected and how long their ongoing symptoms will persist. This development has prompted the NHS to spend £10m on creating a network of long COVID clinics, to deal with these unexpected consequences. Employers may therefore need to consider the impact of long COVID on their employees and their capacity to fulfil their duties, as it appears that long COVID affects a larger proportion of the working population than expected, impacting young individuals as well as individuals with no co-morbid conditions. We have set out some points below for you to consider. What are the symptoms of long COVID? An individual can suffer from different symptoms of long COVID. According to the NHS, the most common symptoms include extreme tiredness (fatigue), shortness of breath, chest pain, brain fog, insomnia, dizziness and sickness. A full list of the symptoms can be found here: www.nhs.uk/ conditions/coronavirus-covid-19/long-term-effectsof-coronavirus-long-covid/. Could long COVID be classed as a disability in law? Section 6 of the Equality Act 2010 defines the meaning of disability as a protected characteristic: “A person has a disability if – they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.” It is possible that these symptoms, or a combination of them, could have a “substantial and long-term adverse effect” on an employee’s ability to carry out day-to-day tasks and fulfil their job role. This would need to be assessed on a case-by-case basis and with reference to medical evidence. In addition, for a condition to be ‘long-term’, the impairment must have lasted 12 months or be likely to last for at least 12 months, or the rest of that person’s life. Scientific and medical evidence is yet to reveal how long the symptoms of long COVID can persist, however evidence suggests that some sufferers may endure these symptoms for a long period of time. What reasonable adjustments is an employer required to make? If an employee suffers from long COVID and based on medical evidence available, it could be concluded that the employee may have a ‘disability’ as defined in the Equality Act 2010, an employer has a duty to make ‘reasonable adjustments’ to aid the employee at work. If an employer fails to make reasonable adjustments this could amount to discrimination in the absence of an acceptable justification. Reasonable adjustments can include altering an employee’s working hours or environment, giving them greater flexibility around when and where they can work and altering the individual’s job role. Whether the adjustments made are “reasonable” is purely dependent on each individual’s circumstances. Under sections 20 and 21 of the Equality Act 2010, an employer can be liable for failing to take action to support an individual overcoming the disadvantages resulting from a disability in the workplace. What should employers do? The employment law implications of long COVID are still somewhat unchartered territory, nevertheless employers should be mindful that an individual suffering from long COVID could be afforded protections under the Equality Act 2010. Only time will tell how this condition will be received within the medical sphere and in the Employment Tribunal context. Until then, just as with any other medical condition, employers should be proactive in trying to understand the extent of individual’s health concerns and where appropriate make any reasonable adjustments. In this context, even if the condition would not amount to a disability, considering the impact of long COVID on employees would enable employers to demonstrate you have acted reasonably. Comment The potential issues surrounding long COVID should be approached with caution and going forward it may be required to allow some flexibility where employees are suffering from this condition. Employers should always ensure they follow a fair process when assessing an employee’s capability. It is important that training is given to managers on how to handle capability issues and how and what support is readily available and should be offered to the employee to enable a smooth return to work.
