At the start of 2020 we could not have foreseen the effect the COVID-19 pandemic would have on our lives and how self-isolation, testing and lockdown would result in normal working practices changing.
While normality has thankfully resumed for most of us, there are still some people who are living with the impact of COVID-19, including those suffering from ‘Long COVID’.
An estimated 1.9 million people living in private households in the UK (2.9% of the population) self-reported that they were experiencing Long COVID symptoms (which include symptoms that continue for more than four weeks after the first confirmed or suspected infection that were not explained by something else) as of 5 March 2023.
As a result, it is important that employers are aware of the implications associated with employees who are suffering from Long COVID, and the steps that should be taken to support those with symptoms impacting their attendance or performance at work.
Is Long COVID a disability?
Employment Tribunals (ETs) have recently had to consider whether Long COVID falls within the legal definition of disability included in the Equality Act 2010. ETs have been alive to the fact that there are still many unanswered questions when it comes to Long COVID, for example, how long it is likely to last and how it can affect each individual differently.
In Bradley v Cultureshift Communications Limited, the claimant tested positive for COVID-19 on 4 November 2020 and after his symptoms deteriorated, he was signed off as not fit for work from 8 March to 21 October 2021. The claimant’s symptoms included anxiety, depression, severe fatigue and ‘brain fog’, and the majority of his fit notes cited Long COVID. Prior to his positive test, the claimant was very active including running and gym sessions. The claimant was prescribed medication which led to some improvement in the claimant’s health, but they were eventually dismissed.
The Tribunal concluded that Mr Bradley’s symptoms of Long COVID met the definition of disability, setting out that the focus should be on what the claimant cannot do, rather than what they can do. This was despite the claimant being physically active and setting up a business after their dismissal. In this case, post-COVID, the claimant could run 10km in about 1 hour (which would be a pretty good time for many of us), but prior to having COVID-19 he had been able to run this distance in about 40 minutes. Had the claimant’s claim about being disabled been solely due to his 10km time having increased from 40 minutes to one hour, this would not have amounted to a substantial impairment. However, when considered alongside his other ongoing symptoms – loss of energy, anxiety, depression and fatigue – these amounted to a substantial adverse effect on his ability to carry out day-to-day activities.
In Matthews v Razors Edge Group, the claimant was employed as a hairstylist and their symptoms, following a positive COVID-19 test, included recurring chest pains, shortness of breath, tingling hands and fingers and headaches which impacted their ability to stand, carry heavy items and their stamina. The claimant’s GP advised them to return to work for two days a week for an initial period of four weeks. Ultimately, no agreement was made for the claimant’s phased return, and they resigned as a result.
The Tribunal held that Ms Matthews’ conditions amounted to a physical impairment which was substantial in nature. The Tribunal found that the symptoms could well last longer than 12 months, and so considered the impairments long term in nature, and the claimant could therefore be classified as disabled. The Tribunal ultimately concluded that a failure to agree to the reduced hours for the phased return was a failure to make reasonable adjustments.
What does this mean for employers?
We will inevitably see more cases determined by ETs as we learn more about Long COVID, so employers should watch this space.
However, if you have any employees suffering from the effects of Long COVID, whether they are off sick for long or intermittent shorter periods of time then, although considered on a case-by-case basis, you ought to consider the possibility that the symptoms will satisfy the legal definition of disability. Therefore, you should consider implementing reasonable adjustments which may be suggested by the employee or via an Occupational Health Assessment. Any action that is taken without this consideration could lead to a claim for discrimination arising from a disability and/ or a failure to make reasonable adjustments.