The long road ahead

An estimated two million people living in the UK (3.1% of the population) are experiencing long Covid: symptoms continuing for more than four weeks after the first confirmed or suspected Covid-19 infection that are not explained by something else. Reports show nearly half of employers have had employees with long Covid in the past 12 months and one in four employers now include long Covid among their main causes of long-term sickness absence.

The symptoms of long Covid can be unpredictable and vary significantly. Research by the University of Birmingham identified up to 62 symptoms linked to the condition. Fatigue was the most common symptom reported (71%), followed by difficulty concentrating (52%), shortness of breath (48%) and muscle ache (47%). Several studies have shown that women are more commonly affected than men, but it is not known why.

Long-term complications of Covid-19 may arise for many reasons, including damage caused by the virus to the cardiovascular, pulmonary, gastrointestinal and neurological systems, which may then lead to organ-specific conditions. Studies have shown that those with pre-existing depression and anxiety are more likely to develop long Covid.

A recent tribunal case, Burke v Turning Point Scotland, concluded that long Covid can be considered a disability under the Equality Act 2010. However, employers should be mindful that each case be looked at on its own facts. This Scottish Tribunal’s decision is not binding on other courts, and not all cases of long Covid will amount to a disability.

The relevant legal test for whether a person has a disability under the Equality Act 2010 is whether they have a “physical or mental impairment” which “has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities”. “Long-term” means that symptoms have lasted at least 12 months; are likely to last at least 12 months; or are likely to last for the rest of the life of the person affected. Due to the potential range of symptoms, long Covid sufferers are likely to be able to show that they have a physical or mental impairment that adversely impacts their ability to carry out normal day-to-day activities. Whether the effect is “substantial” or “long-term”, however, will depend on the severity of their symptoms.

Employers will need to consider each case individually and seek expert medical advice on the impact of the condition to better understand the employee’s symptoms and any prognosis, as well as considering whether reasonable adjustments may be needed for the employee, such as changing their working arrangements or hours. Employers should be mindful that long Covid will vary significantly from person to person.

ACAS advises employers to be aware that the effects of long Covid can come and go. On some days the employee may seem well, but on others, their symptoms can be worse and they might need to take time off work again. Employers may therefore be uncertain whether an employee’s long Covid is a disability, but by making reasonable adjustments where possible, this will support the employee whilst reducing any legal risk.

Employers must apply the same considerations to employees with long Covid as they would to those with any type of long-term medical condition. Although there is some medical uncertainty around long Covid, it is plainly a recognised condition that could amount to a disability, meaning the usual obligations would apply – i.e. the obligation to make reasonable adjustments and obligation not to unlawfully discriminate on the basis of the disability (directly or indirectly) or something arising from the disability (e.g. absence).

Managing long-term sickness absence will always be a balance between the needs of the organisation and the needs of the individual. An employer is not required to retain an employee who is on long-term sickness indefinitely, particularly in circumstances where this is putting pressure on other employees or is hampering the employer’s business activities.

However, employers must ensure that the necessary absence management process is undertaken, and the relevant medical evidence is obtained before any decisions are made regarding an employee’s ongoing employment. A failure to do so may result in an unfair dismissal claim, which may be combined with a disability discrimination claim if the employee is covered under the Equality Act. If a claim is successful, the employer could face funding a large cash reward to the ex-employee as well as the associated reputational damage to the business.

Employers should take legal advice from Law-Call where necessary to identify whether they have any further obligations and are following a fair and reasonable procedure.

Maintaining an open line of communication, and encouraging employees to speak with managers if they are struggling will help employers better understand their workers’ needs and what can reasonably be done to support them and help them continue working. Remember a sustained return to work is more likely with a prolonged phased return, a regularly reviewed return to work plan and flexible adjustments. Occupational health and GPs are well placed to communicate with all parties and assist in creating and revising such a plan.