ONS statistics indicate some cases of “long Covid” will be a disability
ONS estimates that “long Covid” symptoms have adversely affected the day-to-day activities of 1.2 million people in the UK.
We are seeing an increasing number of queries from clients seeking advice on managing employees who are impacted by long Covid. In some cases, these employees are back at work but finding that their on-going health problems are leading to performance or capability issues. In other cases, employees have had long periods of sickness absence or repeated phased returns which unfortunately have not been successful.
On 6 May, the Office for National Statistics (ONS) published data which provide useful insight into the likelihood that long Covid could be found to be a disability for the purposes of the Equality Act 2010. (See Prevalence of ongoing symptoms following coronavirus (COVID-19) infection in the UK: 6 May 2022 for more details.)
Key findings from the ONS survey indicate that around 1.8 million people in the UK are experiencing self-reported long Covid symptoms, that is symptoms lasting for more than four weeks. Of people with self-reported long Covid, 44% had or suspected they had Covid at least one year previously and 13% at least two years previously.
The ONS estimates that 1.2 million people in the UK have had long Covid symptoms which adversely affected their day-to-day activities (67% of those with self-reported long Covid), and 346,000 (19%) have had symptoms which “limited a lot” their ability to undertake day-to-day activities. Fatigue and shortness of breath are the two most commonly reported continuing symptoms, with a significant proportion also reporting difficulty in concentrating.
Some social groups appear to be impacted more than others, with the highest levels of self-reported long Covid in those aged 35 to 49, women, those living in deprived areas, those with other health conditions, and those working in social care, education and health care.
Is long Covid a disability? Well it depends…
The Equality Act defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. “Substantial” means that the adverse impact on ability is more than minor or trivial. “Long-term” means the adverse impact has lasted or is likely to last for 12 months.
The statistics above suggest that in some cases, the adverse impact of long Covid on an individual will be both substantial and long-term enough to meet this definition.
The Equality and Human Rights Commission (EHRC) has recently clarified its position on whether long Covid could constitute a disability under the Equality Act. In a statement published on 9 May, the EHRC commented as follows:
“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act.
“This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.
“To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”
Interestingly, this clarification followed some controversy around a tweet put out by the EHRC on 7 May which stated that the EHRC did not recommend long Covid be treated as a disability “without case law or scientific consensus” on the condition. It may be that this was referring to whether long Covid should be a “deemed disability” under the Equality Act – in other words automatically to qualify as a disability. However, commentators rightly pointed out that the question of whether a particular condition will be found to be a disability requires an examination of the impact of the condition on the individual concerned and does not require a diagnosis or scientific consensus.
You may be interested in our previous article from June 2021 which reported on TUC calls for long Covid to be recognised as a disability: Is long Covid protected as a disability under the equality act? (available on our website).
Key action for employers
We recommend that employers first gather what evidence they can about the health of an employee suffering from long Covid. They should seek the views of an occupational health practitioner and/or a report from a GP or other clinician where possible (with the employee’s consent), as well as discussing the matter with the employee.
Employers should directly ask the relevant medical professionals for their views on whether the employee has a mental and/or physical impairment which has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. This will help to inform the employer’s view on whether the employee is likely to have a disability and whether the duty to make reasonable adjustments and other Equality Act protections will apply.
As we set out above, the adverse impact will be “long-term” if it has lasted or is likely to last for 12 months. Where an employee has not yet had long Covid symptoms for 12 months, it is important to consider, and to directly ask medical professionals, whether the symptoms are likely to last that long.
If in doubt, best practice for employers is to do what they reasonably can to facilitate the employee’s return to work, including considering flexible working options. However, in some cases the adjustments requested may not be reasonable for the employer to undertake, or may not lead to a successful return to the workplace.
Long-term sickness or health-related capability issues can be very complex for managers and HR professionals. We always recommend taking legal advice at an early stage in order to mitigate the risks of complaints and claims. To find out more, you can register to access the recording of our recent Employment Brunch Briefing webinar on managing long-term sickness absence here.
How Wrigleys can help
The employment team at Wrigleys is expert in advising charities, third sector and education sector clients on protections under the Equality Act 2010.
We have extensive experience in helping employers with long-term sickness absence and health-related capability issues, including where discrimination issues arise. We offer timely, pragmatic advice to reduce the risk of conflict and claims.Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment litigation risks. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.