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The Equality Act 2010 defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities. We know from government guidance that 'long-term' means twelve months or more.
Under the Act, employees cannot be treated less favourably than others or placed at a disadvantage by their employer because of disability.
Long Covid usually lasts for weeks or months after the initial infection, although it has been reported to last for up to a year in some cases. Long-term symptoms range from memory loss, shortness of breath and fatigue to chest pain and insomnia.
The TUC has called for long Covid to be recognised as a disability under the Equality Act and for the classification of Covid-19 as an occupational disease. This would allow sufferers of long Covid to be legally protected from discrimination by their employer, on the basis of their disability. Employers would also have to make reasonable adjustments that remove, reduce or prevent any disadvantages to any employees with long Covid.
The government has not yet responded to the TUC’s recommendations. However, a government spokesperson has urged employers to consider reasonable adjustments in relation to staff with long Covid. This is also the approach recommended by Acas, which has published guidance on how to manage employees with long Covid.
Employers should be alive to the fact that, while employees may struggle to bring a claim of disability discrimination due to long Covid, there is the potential for them to bring other claims where they have other protected characteristics. Long Covid has been found to have a more severe impact on older people, pregnant people, women and ethnic minorities. As such, employees may bring claims for indirect age, pregnancy, sex and race discrimination, if they are treated detrimentally by their employer as a result of having long Covid.
The key to avoiding discrimination claims in all instances is to make reasonable adjustments to support employees with long Covid.
When looking to manage or support employees with long Covid, employers should consider the following:
When it comes to long Covid, the law in this area is still evolving, but the potential for discrimination claims is a real risk. Discrimination claims can lead not only to employers paying thousands of pounds in legal costs, but also the risk of reputational damage. This should also not be underestimated; just because long Covid is not yet recognised as a disability, it does not mean employers will not be scrutinised for failing to support employees who suffer with its symptoms.
This article was originally published by The Caterer
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions
12 July 2021
News 08 OCTOBER 2021