The head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long COVID-19 symptoms as if they have a disability for the purposes of the Equality Act 2010.

Although this does not have any legal force as such and does not mean that employers should now treat all those as suffering from Long COVID as disabled, it’s a helpful reminder of avoiding falling foul of discrimination law. Sufferers may meet the definition of disabled if their symptoms have, or are likely to last for at least 12 months and cause a substantial negative effect on day-to-day activities. Disability is a protected characteristic and claims which can arise from disability discrimination include: direct or indirect discrimination, discrimination arising from disability or failure to make reasonable adjustments, each of which are separate claims under the Equality Act 2010.  If successful in the Employment Tribunal, a claimant could receive an award of compensation which, for discrimination, is uncapped. The consequences for employers are therefore potentially very serious.

Long COVID is defined by the Office for National Statistics as: symptoms persisting for more than four weeks after the first suspected coronavirus (COVID-19) infection that were not explained by something else.  Symptoms reported include extreme tiredness, shortness of breath, chest pain or tightness, problems with memory and concentration (“brain fog”).  With an estimated 1.5 million people living in private households in the UK (2.4% of the population) reporting experiencing long COVID, and with rates showing a steady increase, it is perhaps not surprising that this condition has been flagged by the EHRC for special consideration by employers.

There is no legislation currently in place which specifically protects employees with long COVID and the EHRC has sought to address this gap with its interim advice.  This has partly been in response to trade unions, including the TUC, lobbying the government to classify the condition as a disability.

The definition of a disability under section 6(1) of the Equality Act 2010 is:

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

As the symptoms reported by long COVID sufferers can include cognitive difficulties and fatigue, it is certainly conceivable that they may affect an employee’s performance at work.  However, because symptoms vary and can fluctuate, it is not yet certain whether all cases of long COVID will meet the “substantial” and “long-term” adverse effect criteria of the legal definition.

There are certain medical conditions which the Equality Act automatically classes as disabilities, without requiring an individual to satisfy the test set out above. These include cancer, HIV infection and multiple sclerosis.  It would be open to the government to extend this list to long COVID.

However, unlike these conditions, it is our view that the fluctuating and very varied nature of long COVID symptoms, as well as its novelty as a condition, is likely to pose a barrier at least in the short-term to the government including it as a deemed disability within the Equality Act 2010.  Although it would be churlish for employers to ignore the advice of the EHRC, before taking the more considered steps required to protect employees with disabilities from discrimination, an assessment of each individual’s circumstances against the statutory definition in the Equality Act should be made.

For further support, ACAS has produced guidance for employers on responding to employees with long-COVID.

If you would like further advice tailored to your particular circumstances, please contact us.