Long Covid: many workers have faced unfair treatment at work

The survey

Other findings from the survey include:

• 23% of respondents said their employer has questioned whether they have long Covid or the impact of their symptoms.
• 14% said they lost their job because of reasons connected to long Covid.
• 28% are concerned that long Covid has affected their chances of promotion.
• 16% experienced bullying and harassment at work.
• 48% had not been given any or all of the reasonable adjustments they needed to come back to work.
• 50% had not been given any or all of the reasonable adjustments they needed to manage their job.

The TUC and LCSEG are of the view that Government action is needed to ensure everyone with long Covid is protected by law and they have called for a range of measures such as:

• Ensuring everyone with long Covid is recognised as disabled under the Equality Act 2010.
• Recognising Covid-19 as an occupational disease which would mean that employees who contracted it at work would be entitled to compensation.
• Greater flexibility in all jobs with employers under a duty to list the possible flexible working options for each job when it is advertised. In addition, workers should have a day one right to work flexibly and not simply the right to request this.
• Detailed guidance for employers should be prepared urgently by the Equality and Human Rights Commission (EHRC) about long Covid and the types of reasonable adjustments people may need.

The law

Disability is a “protected characteristic” under the Equality Act 2010 and the definition of disability is contained in section 6(1):

“A person (P) has a disability if P has 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.”

In establishing whether or not someone has a disability, four separate questions need to be addressed separately and sequentially:

• Does the individual have a physical or mental impairment?
• Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities?
• Is that effect substantial? “Substantial” means more than minor or trivial.
• Is that effect long-term? The effect of an impairment is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.

There have already been a number of Employment Tribunal cases about whether or not long Covid is a disability. In the significant case of Burke v Turning Point (May 2022), the Employment Tribunal held for the first time (as a preliminary issue) that long Covid met the definition of disability. For more details see our earlier article here.

It is important to note however that each case is considered on its own facts. In other cases, the Employment Tribunal may come to a different conclusion as it did in Quinn v Sense Scotland (August 2022). It held that Mrs Quinn’s long Covid symptoms did not constitute a disability because at the time of her dismissal, the effect of the symptoms had lasted only two and a half weeks and so, were not long-term.

The symptoms of long Covid vary between different people and an individual’s own symptoms can fluctuate over time. In many cases, long Covid will not be a disability. The TUC and LCSEG’s suggestion that long Covid be classed as a disability has not been accepted by the Government. Its view is that the Equality Act 2010 definition of disability “would capture long Covid on a case-by case basis“.

If the definition of disability is met, the employer may then be under an obligation to make reasonable adjustments if the disabled person is placed at a substantial disadvantage compared to non-disabled people.

Regardless of whether or not an individual’s long Covid symptoms meet the definition of disability, many employers are choosing to actively support their staff who have long Covid. Measures such as a phased return, flexible working, adjustments to the role and working from home are used frequently as are referrals for occupational health assessments. Many employers recognise that the fluctuating symptoms of long Covid and the uncertainty about how long they might last cause a great dealt of anxiety and are taking steps to support the individual’s mental health.

There is already guidance about how employers can support staff with long Covid.

ACAS has published Long Covid advice for employers and employees. ACAS takes the view that employers should focus on the reasonable adjustments they can make to support the individual suffering from long Covid rather than trying to work out if their condition is a disability.

The CIPD also has an extensive range of guidance on working with long Covid.

Comment

Whilst there have only been a handful of Employment Tribunal decisions so far about long Covid and disability, there will probably be many more in the future. We can see from the ONS statistics that for many thousands of people, their long Covid symptoms have a significant impact on their day-to-day activities. We can also see from the TUC and LCSEG survey that many people have experienced adverse treatment at work because they have long Covid.

We are still learning about long Covid and its effects. For many employers, supporting their staff suffering from the condition will continue to be a priority in the months ahead.

If you are interested in another of our long Covid articles please read Long COVID: what employers need to know.