With Covid rates rising once more in the UK, employers will be returning to dealing with challenging issues around workplace safety and staff absence.
But for many employees, the pandemic hadn’t let up. Those suffering from long Covid have continued to have their home and work life affected. And while some employers will have got to grips with what long Covid means for those it hits, there will be others that have taken a more cynical view and a less sympathetic approach.
So, what if long Covid were a ‘disability’ – would that make things better for employees suffering from the condition?
Employers owe legal and moral duties to all employees and have additional responsibilities when it comes to those that are disabled. Disabled employees have the right not to be treated less favourably because of their disability. Employers must also make reasonable adjustments so that disabled employees are not at a disadvantage in work. A person with long Covid (as a ‘disability’) might therefore wish to agree changes to their working hours, or have their employer discount certain periods of absence, for example.
One might argue that a reasonable employer makes adjustments for employees, regardless of whether disability is in play or not. Being a good employer means helping employees be their best. But where is the line drawn? What sort of requests should a business agree to? How far should an employer go in accommodating an employee’s wishes or needs?
These are questions that employment lawyers like me help clients work through. It’s all part of handling of the employer/employee relationship. And it usually involves careful consideration of whether the employee has a disability that would trigger those additional employer responsibilities and potential legal liabilities.
Could long Covid be a disability?
Undoubtedly, yes. As with any health condition, the key question is whether it satisfies the employment law definition of a disability:
A physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
The Equality and Human Rights Commission caused some consternation recently by tweeting that it didn’t recommend that long Covid be treated as a disability. It later clarified that by saying that long Covid would be disability if it met the legal definition.
This goes to show just how fact-specific ‘disability’ is, in an employment law context. It is completely feasible that one long Covid sufferer could be considered disabled and another not, based on the effect the condition has on their daily life. That long Covid could be a disability was recently highlighted in a tribunal decision involving a caretaker who reported numerous symptoms, including joint pain, difficulty concentrating, and fatigue, after contracting Covid and taking nine months off work. The tribunal found that he was disabled.
The difficulty with a retrospective finding of disability like this is that the damage may have already been done; the employer can’t put right things it may have done wrong. That is why I urge clients to always have disability in mind whenever there is an issue with an employee – and not just in cases where there is an obvious impairment. Mental health issues, in particular, can present themselves in all sorts of ways, some of which don’t alert employers to a problem and certainly don’t lead the employer to think ‘disability’.
Given the high stakes – the responsibility towards employees and the legal liabilities for getting things wrong – it pays to really understand what disability in the workplace looks like. Businesses should make sure policies and processes are fit for purpose, paving the way for employees to be properly supported and managed. Managers should be trained in dealing with physical and mental health at work, and specifically in how equality legislation and best practice fit into that.
Getting a handle on whether an employee may be disabled is important, because it allows two things to happen: you can put the appropriate support in place for the employee; and you can protect your business from a successful disability discrimination claim. But there is danger in forming too rigid a view of an employee’s ‘status’ in this respect. Aside from certain conditions, like cancer, that are automatically classed as disabilities, there is huge room for debate about whether disability in any particular employee’s situation is established or not. Indeed, a different tribunal in the caretaker case I mentioned may have reached a different conclusion. It’s therefore often unfeasible to have complete clarity on whether or not an employee is disabled in ‘real time’, as opposed to once a tribunal judgment has been received.
The safest route for an employer faced with an employee with any health issue (including long Covid) is to work through the legal definition of disability in the context of that person:
- Does he/she have a physical or mental impairment?
- Does the impairment have a substantial and long-term (meaning that is has lasted or is likely to last at least 12 months), adverse effect on his/her ability to carry out day-to-day activities?
Medical and occupational health advice can be valuable in getting the answers and in designing solutions to problems the employee encounters or could encounter at work.
But what if there is still uncertainty around the question of disability, or what if the employer believes the employee isn’t disabled? My advice is to be cautious; don’t pin everything on the label. Instead, focus on the person and ask yourself:
- What could we do to make things easier for the employee in work?
- How could we make sure they’re not at a disadvantage in work?
- Would it be reasonable to put different arrangements/measures in place, with a view to supporting the employee?