An Employment Tribunal has ruled that an employee who was dismissed after a lengthy absence due to long covid symptoms was a disabled person and protected by the Equality Act.
What is long covid?
Most people recover from covid within the first 4 weeks.
However, for some people, covid can cause symptoms that last for months after the initial infection. Anything over 4 weeks is informally known as long covid.
The symptoms are varied and can change over time, but can include extreme tiredness, brain fog and headaches.
What counts as a disability?
Under section 6 of the Equality Act 2010, a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities.
Substantial means that the impairment affects normal day-to-day activities in a way that's 'more than minor or trivial'. However, an impairment that no longer has that effect, but is likely to return, must be treated as continuing to have that effect.
Long-term means that the impairment has lasted, or is likely to last, 12 months or more.
A caretaker at a charity became absent from work due to covid symptoms. He experienced severe headaches, fatigue and joint pain that prevented his return to work.
Simple activities like chores around the house and walking to the shops became difficult. He had to lie down to rest after waking, showering and dressing.
Due to covid restrictions he could only get a telephone assessment from a GP, at which he was diagnosed with 'post viral fatigue syndrome' (i.e. long covid).
His symptoms continued for months. They often seemed to improve but would soon return.
After an 8-month absence, the charity dismissed the caretaker due to ill-health, stating in a letter that there didn't 'appear to be a potential date on which there is a likelihood of [him] being able to return to full duties.'
The caretaker brought several claims to a tribunal, including disability discrimination and unfair dismissal.
A preliminary hearing was held to decide if the caretaker was a disabled person under the Equality Act.
The tribunal decision
The tribunal ruled in the caretaker's favour. Therefore, he could continue with his claim.
Firstly, it decided the caretaker did have a physical impairment:
- Although there was a lack of medical evidence due to restrictions on face-to-face GP meetings, the caretaker made his claim in a credible manner and there was no evidence his symptoms didn't exist or were exaggerated.
- The caretaker's sick pay had already come to an end, so there was no financial benefit to him staying off sick. Considering his 20 years of service, it was unlikely he was pretending.
- The tribunal further noted that the caretaker's evidence of his symptoms was in line with the Trades Union Congress' (TUC) report on workers' experiences of long covid.
- It accepted that long covid is a 'recognised difficulty' with symptoms that are likely to fluctuate with 'good and bad days'.
Secondly, the tribunal agreed that his symptoms did adversely affect his ability to perform day-to-day activities. That effect was 'more than minor or trivial' because he couldn't do even simple chores.
Finally, the tribunal had to decide whether the impairment was long-term, i.e. likely to last for 12 months or more:
- It said it had to view the impairment from the date the alleged discrimination took place instead of looking at how long it actually lasted.
- The nature of long covid meant that at the time it was very difficult to predict when the symptoms would end.
- The charity's own letter of dismissal stated that it wasn't clear when he'd be able to return to work.
As a result, the tribunal decided that at the time of the discrimination it appeared likely that the impairment and its substantial effects would last 12 months or more, and therefore should be considered 'long-term' under the Equality Act.
What you should do
An estimated 2 million people living in the UK experience long covid. 1.4 million say that the symptoms have an adverse impact on their day-to-day activities.
This ruling doesn't mean that any employee with long covid has a disability. However, if any of your employees are diagnosed with it, you should accept that they may have a disability, especially if their symptoms are severe.
You should review and assess their ability to perform their roles safely. You can do this through an occupational health provider who can give advice on how to ensure the employee is fully supported.
After the assessment, make reasonable adjustments to the workplace to allow them to remain at or return to work. Consider adjusting their hours or allowing them to work flexibly.
You may also need to adjust your policies to cover long covid. This may involve allowing a longer period of absence before taking action and recognising that sufferers are more likely to take shorter and more frequent absences.