By Aleksandra Traczyk, Solicitor at Winckworth Sherwood

On 7 October 2021, the Office for National Statistics (ONS) reported that an estimated 1.1 million people in the UK were experiencing self-reported long COVID.  Of those, 831,000 had (or suspected they had) COVID-19 for at least 12 weeks previously, and 405,000 at least one year previously. This is a staggering statistic.  With many employees off work due to long COVID, two key questions arise for employers: can long COVID amount to a disability under the Equality Act 2010, and what does it mean for employers in practice?

Can long COVID amount to a disability?

Under the Equality Act 2010, a disability is a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to carry out normal day-to-day activities.  ‘Long term’ means that the impairment has lasted or is expected to last for at least 12 months or more, at the time of the alleged acts of discrimination committed. ‘Substantial’ means more than minor or trivial.

Is it long term?

The ONS has defined “long COVID”, as symptoms persisting for “more than four weeks” after COVID-19 is first suspected. This would not be long enough for the purposes of the Equality Act 2010, unless the symptoms were expected to last for at least 12 months or more.

ACAS, which has published its own guidance on whether long COVID is to be treated as a disability, has stated that it is currently understood that it is a condition that can last or come and go for “several months” but has not been more specific.

In cases where long COVID has lasted for at least a year, as it has in a large number of self-reported cases, the long-term test would be met and in cases where the symptoms have continued for a few months and look likely to continue, this equally would appear to be met.

Does it adversely affect day-to-day activities?

The ONS reported that long COVID symptoms “adversely affected the day-to-day activities” of 706,000 people, with 211,000 reporting that their ability to undertake their day-to-day activities had been significantly limited.  Fatigue was the most common symptom (56%), followed by shortness of breath (40%), loss of smell (32%) and difficulty concentrating (31%). ACAS has also acknowledged that long COVID can affect a person’s ability to carry out day-to-day activities. It will be a question of fact and degree in each case.

What does it mean for employers in practice?

For now, ACAS has not directly answered the question of whether long COVID can amount to a disability and stated that, rather than trying to work out if an employee’s condition is a disability, the employer should focus instead on what reasonable adjustments they can make. This is certainly going to be the answer in the short-term, but what about the long-term outlook?

Hopefully, those employees who have been absent due to long COVID will either eventually fully recover or be able to return to work with reasonable adjustments in place.  However, what if their absence is persistent and they are unable to return to work even with reasonable adjustments in place?  Employers should proceed with caution with respect to any potential dismissal, as they would in cases of any long-term sickness absence, as it is likely that in those circumstances the employee’s long COVID will amount to a disability.

Medical evidence will likely be key in long COVID cases, as it will assist employers both in terms of deciding what reasonable adjustments should be put in place and to provide an indication as whether the employee is likely to be able to return to work following a long-term absence.

Not just long COVID

Long COVID has been found to affect older people, ethnic minorities and women more severely.  Employers therefore should be aware that those groups could bring an indirect discrimination claim based on age, race or sex, where they have been subjected to a detriment because of their long COVID, even when their long COVID does not amount to a disability.

Conclusion

There has been no reported case law on long COVID as yet, but this will undoubtably change in the months and years ahead as we come out of the other side of the pandemic.  It remains to be seen whether the Government will take a policy-based approach to limit the number of cases coming through the courts, but this seems unlikely in view of the protections in place under the Equality Act 2010. Some have called for long COVID to be automatically deemed as a disability, but this may also be unlikely.

In any event, it is clear that long COVID could amount to a disability, depending on the circumstances, and it is therefore vital that employers approach any long COVID cases amongst their workforce with caution in order to try to avoid the risk of any allegations of possible discrimination being raised.   Compensation in discrimination cases is uncapped but loss-based and in cases of long term ill health this potential risks could prove significant.