Is “long Covid” protected as a disability under the Equality Act?

TUC calls for long Covid to be a deemed disability and highlights the ongoing and potential future impact Covid may have on workforces.

On 20 June 2021 the TUC published a report into the impact of “long Covid” on working people. “Long Covid” is the name which has been adopted to describe the long-term post-viral symptoms of Covid.

Whilst long Covid is generally accepted to exist and is something employers need to keep in mind, there is still relatively little information about the impact this is having on sufferers’ experiences at work. Symptoms, summarised here on the NHS website, include fatigue, shortness of breath, chest pain, palpitations, problems with memory and concentration, depression, anxiety, and insomnia.

The TUC report

More than 3,500 workers responded to the TUC’s survey on the impact of long Covid on daily working lives. Over three-quarters of respondents to the survey defined themselves as key workers, with the majority of these working in education or health and social care.

95% of respondents said they had been left with ongoing symptoms from Covid, 29% experienced symptoms for more than a year, and 52% said they had experienced discrimination or disadvantage due to these symptoms.

Around 20% of respondents reported that their employer had questioned the impact on them of their symptoms, 13% had faced questions about whether they really had long Covid at all, and 5% reported that they had lost their jobs because of long Covid symptoms.

The report also highlights that long Covid symptoms are leading to a considerable amount of sick leave. 20% of respondents were on paid sick leave, with a small minority being on unpaid sick leave. 18% of respondents reported that the amount of sick leave they had taken triggered absence management procedures.

TUC Recommendations

In the report, the TUC calls on the Government to recognise long Covid as a disability under the Equality Act 2010.  They also urge the Government to recognise long Covid as an occupational disease which would allow sufferers to claim Industrial Injuries Disablement Benefit.

The report recommends that employers record long Covid related absence separately from other sickness absences and make reasonable adjustments to help those suffering from long Covid to continue in work.

Is long Covid a disability?

A disability is defined in the Equality Act 2010 as a mental or physical impairment which has a long term substantial adverse impact on someone’s ability to carry out normal day to day activities. There is no need for a condition to be officially recognised or diagnosed for it to be found by a tribunal or court to be a disability. “Long term” means that the substantial adverse impact has lasted for 12 months, or is likely to last 12 months. In the case of some conditions and symptom-sets coming under the umbrella term of “long Covid”, it may well be that this definition is already met and that the sufferer could already be protected by the Equality Act. However, whether any particular person suffering from long Covid symptoms is protected will depend on the specific impact on that person and would need to be considered on the facts on a case-by-case basis.

Some conditions are automatically deemed disabilities under the Equality Act, although these are limited to: blindness, sight impairment, severe disfigurement, cancer, HIV infection, and multiple sclerosis.

Action for employers

The impacts of Covid in the workplace will need to be continually monitored by employers. Long Covid began to grab headlines many months ago, and whilst the spotlight has rightly been on the immediate threat to life caused by the virus, we are starting to see the longer-term issues emerge.

Whilst long Covid itself is, in our opinion, unlikely to be added to the list of deemed disabilities, it is becoming increasingly clear that the lingering mental and physical impacts of Covid could be protected as disabilities under the Equality Act.

Employers should seek medical information from occupational health providers and/or the individual’s GP or consultant to inform them as to whether that individual may be disabled under the Equality Act and to consider any reasonable adjustments which can assist them to remain in work. Reasonable adjustments are likely to include making changes to the role, hours of work, or working environment, and adjusting the trigger points for disciplinary action in any sickness absence management policy.

Where employers decide to take action to discipline or dismiss an employee because of long Covid related absence, it will be vital to ensure that the action taken is necessary and proportionate in the circumstances, taking into account the needs of the organisation and the discriminatory impact on the individual. And any such justification should be carefully documented, given the risk of claims.

We recommend that employers should seek legal advice before carrying through sickness absence management procedures or taking disciplinary action against an employee in these circumstances.