The TUC has called on the government to categorise long Covid as a disability under the Equality Act arguing the current law does not adequately protect employees from workplace discrimination. We disagree, we think it does, and we’ll come onto that, but first the research.
This was as online survey commissioned by the TUC, a poll of 3,500 people showing that just over half of those with long Covid symptoms – typically, fatigue, brain fog and shortness of breath - have experienced some form of discrimination or disadvantage where they work. They found long-Covid sufferers are frequently met with disbelief and suspicion, with managers questioning the impact of the condition in 19% of cases and doubting employees even had long Covid at all in 13% of responses.
The Guardian reports on this and quotes TUC general secretary Frances O’Grady. She says: ‘long-Covid must be recognised as a disability, which would mean workers are protected by the Equality Act and have a right to get reasonable adjustments at work, such as flexible working, longer rest breaks, specialist software or equipment.’ That statement is, we think, misleading because it suggests the Act currently doesn’t offer any protection whereas, of course, it does, provided the condition qualifies as a ‘disability’ under that legislation.
This is something we flagged back in April in Amy Hextell’s Outlaw article ‘Employers must act on mental health impact of ‘long Covid’. She points out how 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. Long-term means that it has lasted, or is likely to last, 12 months. It follows that the effect does not have to have lasted 12 months to qualify. However, importantly, it doesn’t mean that anyone with long Covid will necessarily qualify – some will but most, probably, will not and so the message to employers is you need understand that and manage every case on its own merits. Why? Because the consequences of getting this wrong are potentially very costly - disability discrimination claims with uncapped compensation and/or long term sickness absence.
So, let’s get some reaction to this news. Amy Hextell joined me by video-link to discuss the issue of long Covid. I started by asking Amy what she makes of the TUC’s report:
Amy Hextell: “ From an employment law perspective it's quite an interesting debate really and I think that perhaps some of the media coverage of this misinterprets, or doesn't fully understand, the legal position. Long Covid is new, obviously, albeit that actually the pandemic first broke out in many countries well over 12 months ago now, so whilst Covid is not new, long Covid and the symptoms associated with it, and the impact that that has on employees doing their work, is probably something that we're all still trying to understand more about but what is clear is that there is a variety of symptoms that people have, and it affects people in different ways. So, it is something that employers need to be mindful of, either where they've had people that have been off long term sick, or people are perhaps back at work but there are various aspects of their work that they're struggling with. The calls are for more recognition of the fact that this should be a disability and protection is needed but, actually, the Equality Act already provides coverage, I would say, and protection for employees who are suffering with long Covid because the disability definition in the Equality Act is where somebody has a physical or mental impairment, which has a substantial adverse effect on their ability to do normal day to day things and that impact has either lasted 12 months, or is likely to last 12 months. So, it could well be the case that employers are already having to manage employees who have had long Covid and it would qualify as a disability as a consequence of which employers need to be ensuring that they're making reasonable adjustments, or that they aren't discriminating, but actually I don't think that there's a need for a change in the law to offer protection because, really, long Covid, and the symptoms associated with it, and any absence associated with it, is really something employers should just be managing in the way that they would any other long term absence, or somebody with an underlying health condition, who perhaps isn't absent long term, but who is suffering the effects of the condition on a long term basis. So, it's something that I think there's a bit of misunderstanding about in the media, and something that employers need to be mindful of, but perhaps don't need to be panicking about.”
Joe Glavina: “So what should employers be doing now Amy? What’s the advice we’re giving to clients on the issue of long Covid?”
Amy Hextell: “So the advice that we're giving to employers around long Covid, and absence related to Covid, is really similar to that which we would be giving in any other long term absence situation or where there's an underlying health condition, and that is to be making sure that you are engaging with the employee, discussing their condition with them, understanding what they feel able and not able to do, and getting a bit of a prognosis as far as you can. Something that's really helpful and critical, I think, really, in that is making sure that you are engaging with occupational health providers, where at all possible, because, you know, it is quite difficult in some of these cases to understand what the prognosis is but, of course, for an employer, the question is well how is how is this impacting on work and occupational health are probably in the best position to be providing medical advice specific to the role and the type of employment that the employees engaged in. So, definitely seeking advice from occupational health and then I think proactively managing absence. Certainly at the start of the pandemic I think a lot of employers, probably quite rightly, took the view that Covid-related absence should be treated differently and perhaps didn't count it towards absence triggers, for example, or things like that but, actually, the longer this goes on, and particularly with long Covid where we are still uncertain about how long the effects may last on an individual, I think it's important to be proactively managing absence in accordance with your normal absence policies and processes. There is just a word of caution around that to add, and that's the risk of indirect discrimination or the need to make reasonable adjustments. So, where for example, an employer has a requirement or a policy, or adopts a certain way of doing things, and that is going to cause a disadvantage for somebody with long Covid if that amounts to a disability, there is a need to avoid that disadvantage as best as you can. So, for example, I know not everybody's been working from home during the pandemic, but many have been, and lots of employers are talking to us about the return to the office now, mandating people come in two or three days a week, and that sort of policy and blanket approach is fine except that there needs to be some caution exercised, and some discretion, in cases of people perhaps with long Covid who would be disadvantaged by that requirement. So, it's that slightly more subtle issue really that the employers might miss and could get them into trouble.”
Amy’s article which looks in detail at long Covid and how to manage it is called ‘Employers must act on mental health impact of ‘long Covid’. You can find that on the Outlaw website along with all the latest developments in this area.