I’m sure many of you will know someone who has developed covid – a condition currently defined as covid symptoms that persist for more than four weeks after the first suspected covid infection. You too, like me, may have heard stories of individuals who have been to the gym before work and completed triathlons on the weekend, now struggling to walk or manage a full day’s work.
There are many unknowns (mostly medical) about the long Covid, but this blog considers what we I DO know – about the prevalence, what the workers say and what the courts say about his status as a disability. We then briefly look at what employers need to think about when managing a worker or employee with prolonged Covid.
Prevalence
Office for National Statistics (ounce) is publishing monthly reports on the prevalence of long-term Covid in the UK and associated activity restriction. The figures for August 2022 show us that:
- an appreciated one 8 million people in private households in the UK were experiencing self-reported prolonged Covid,
- of those reporting long-standing Covid 43 percent had symptoms of at least one year AND 21 percent ABOUT IN at least two years,
- an appreciated one 3 million reported that long covid negatively affected their ability to undertake daily activities,
- groups that have been particularly affected include persons aged 35 – 69 years; women; those working in social care; AND those who already have health conditions or disabilities that limit activityAND
- The most common symptom reported was fatigue (54 percent) followed by panting (31 percent).
The NHS website lists various symptoms which include extreme fatigue, chest pain, memory and concentration problems, sleep problems, depression and anxiety, joint pain, stomach pain.
The TUC published a report in June 2021 of their members’ experiences of prolonged Covid, noting that the severity of symptoms can fluctuate, and ACAS’s short advice on prolonged Covid makes the same observation.
What did the court say?
In May 2022, the Equality and Human Rights Commission said (on Twitter) that there is currently a lack of case law and scientific consensus on long-term Covid. And further saying that although it is not currently recognized as one automatic disability, if someone’s symptoms have a significant and long-term adverse effect on their ability to carry out normal day-to-day activities, prolonged Covid in such circumstances may be a disability, which would be reviewed by the courts in the usual way.
There has now been a case that examines this very question. On 10 June 2022, the Employment Tribunal (Scotland) found that a claimant who reported suffering from prolonged Covid was disabled for the purposes of the Equality Act 2010 from 15 November 2020 – 13 August 2021. This is of course a factual assessment applying the terms of the Equality Act 2010 and does not mean that during Covid it will always be a disability. However, it tells us what a Tribunal will consider relevant to the issue of disability in this context.
Historically, the Plaintiff in this case tested positive for Covid-19 on November 15, 2020 and received medical leave. He had flu-like symptoms. After the period of isolation he showed symptoms of headache and fatigue, such that after waking up, showering and dressing he had to lie down to rest from fatigue. He also reported loss of appetite, muscle aches and poor sleep at night. He took appropriate notes for his period of absence, which noted variously “fatigue” “long-term effects of Covid” and “post viral fatigue syndrome”. He would get better and then get worse again, which created uncertainty and anxiety. There were also OH reports which noted his fatigue but did not consider him to be disabled for the purposes of the Equality Act 2010 and in June an OH report stated that he was able to work, having assessed the claimant of demand when a better situation was passing. period. There were times when the claimant felt like he could go back to work, only to change his mind again after a fall.
The claimant was eventually terminated due to his persistent absenteeism. His employer admitted he was disabled for the period 25 November 2021 to 15 June 2021 (so almost seven months), but not after that when they thought he had recovered enough from his long-term Covid symptoms to pursue work (according to the OH report). The Respondent sought, in part, to rely on the lack of medical evidence and the lack of specificity in what was provided.
The Tribunal preferred the Claimant’s evidence. The tribunal took into account the TUC report (quoted above) when it found that long Covid was a “Known Difficulty” and noted that the symptoms reported by TUC members largely reflected the claimant’s experience, in particular that sufferers would have “good days and bad days“. The Tribunal saw no reason why the Claimant would exaggerate his symptoms – his sick pay eventually ran out and he had no financial incentive to stay out.
In terms of longevity, the Tribunal quoted the Respondent’s own assessment in the dismissal letter which stated that “there doesn’t seem to be a likely date for it [the Claimant] ability to return to work“.
What should you think if you have a worker with prolonged Covid?
Although there is some medical uncertainty surrounding long-term Covid, it is clearly a recognized condition that can constitute a disability, meaning that the usual obligations would apply – ie. the obligation to make reasonable adjustments and the obligation not to discriminate unlawfully on the basis of disability (directly or indirectly) or something arising from disability (eg absence).
A few things to consider:
- How to protect your team knowledge and awareness to date, reducing the risk of being overlooked, misunderstood or dismissed for a long time. data collection and knowledge increase.
- Saving one open line of communicationand encouraging employees to talk to managers if they are struggling – symptoms can change and fluctuate, so regular check-ins will help you better understand your workers’ needs and what you can reasonably do to supported them.
- Looking regular advice from OH (or other medical professionals). As mentioned in the case above, just because an OH report says “able to work” does not mean that a worker is actually able to work and/or not disabled. It was crucial in the case above that symptoms of long-term Covid fluctuate over time, so make sure you are taking action on the most up-to-date information and being aware of possible changes.
- It is clear that prolonged Covid can last for a long time and we often see employers offering great support at first, but this fades over time. Make sure your strategies and adjustments fit long-term solutions being reviewed and flexible.
- Follow the usual good practice in the management of long-term sickness absencefollowing your own policies and ACAS guidelines.
If you require further information on anything covered in this blog, please contact Sophia Coles or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, August 2022
