Can Long Covid be considered a disability?

It has been widely reported recently by the media that Long Covid can be considered a disability under the Equality Act 2010. Harrison Drury’s employment law team, outlines the most recent case behind these findings.

These media reports follow the first Employment Tribunal decision in Burke v Turning Point Scotland ETS/4112457/2021, which held that an employee with Long Covid was disabled for the purposes of the Equality Act 2010.

However, is it always the case that Long Covid will be considered a disability under the Equality Act 2010?

The test under the Equality Act 2010

Under the Equality Act 2010 a disability is defined as a:

• “Physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities”.
• “Long-term” for these purposes means the impairment has lasted 12 months or is likely to last at least 12 months or for the rest of the person’s life.

Burke v Turning Point Scotland

In this recent Scottish Employment Tribunal, Mr Burke tested positive for COVID-19 in November 2020. Initially Mr Burke’s symptoms were mild, but he subsequently developed severe headaches and suffered from fatigue.

Mr Burke stated that tasks such as showering and dressing would require him to lie down to rest from exhaustion and he was unable to undertake usual household activities such as cooking, ironing and shopping because of a lack of energy.

The tribunal held that Mr Burke was disabled as his symptoms met the relevant tests of the definition of disability in the Equality Act 2010; this is despite that fact that the impact varied over time (with the employee having good days and bad). It was held that the physical impairment had an adverse effect on his ability to carry out normal day-to-day activities.

Furthermore, although the seriousness of the effect on the employee varied, the overall adverse effect was substantial. This effect was more than minor or trivial and it was long term because it “could well” last for a period of 12 months or more.

Is Long Covid a disability?

Despite the above precedent, each case will be considered on its own specific facts. It may therefore not always be the case that an employee with Long Covid is considered disabled under the Equality Act 2010.

Possible considerations will be the severity of the symptoms and the resulting impact on daily activities.

What does this mean for employers?

The aforementioned ruling is likely to encourage more claims from employees suffering with the condition.

As such, employers will need to consider what practical steps they can take to support employees claiming to suffer from Long Covid and to protect themselves from disability discrimination claims.

• Review recent policies such as disability or sickness absence policies, to ensure they are fit for purpose and non-discriminatory.
• Provide training to managers on how to hold sensitive conversations surrounding health and how to best manage an employee suffering from Long Covid.
• Seek medical input from, for example, occupational health specialists.
• Provide support and take the time to communicate with employees about the nature of their symptoms. It is important to create an environment in which employees feel comfortable enough to keep you updated on their condition and to discuss what adjustments may assist them.

In general, employers should err on the side of caution when dealing with employees suffering with Long Covid and make reasonable adjustments to facilitate an employee’s continued employment.

These adjustments may include a phased return to work, adjustments to duties or discussing what they want to tell others at work about their illness.

If you have any questions regarding your role as an employer, or if you would like assistance to review your employment policies, arrange suitable training or in seeking medical input, please contact Harrison Drury’s employment law team on 01772 258321.