It is likely that some staff may be affected with Covid-related symptoms long term impacting on their attendance at work or ability to do their job. Could these employees be deemed disabled under the Equality Act 2010 (the EqA)? If so, this adds a new level of absence or capability management to HR processes. It also adds a greater degree of financial risk to getting the process wrong.

We are not aware of any cases of Long Covid discrimination having been decided by a Tribunal yet. The questions a Tribunal will ask are:

1.  Does the staff member have a physical or mental impairment?
2. Does that impairment have an adverse effect on that staff member’s ability to carry out normal day-to-day activities?
3. Is that effect on the staff member substantial? and
4. Is that effect considered long-term?

If a Claimant fails to persuade a Tribunal that the answer to any one of these questions is yes their claim will fail.

A physical or mental impairment?

There is no set list of physical or mental impairments that Employment Tribunals refer to. It is not a question of 'are you on the list or not?'. Some impairments are obvious (the loss of a limb for example). Often mental impairments or those related to fatigue, for example, are less obviously identifiable.

Guidance to the EqA makes it clear that a Claimant does not have to establish a medically diagnosed cause of an impairment. If a Claimant can establish an 'impairment' (often through medical evidence) they may satisfy this limb of the test without providing evidence of an underlying condition. Given we still do not fully understand how Covid affects the body this may help Claimants in their claims.

Does that impairment have an adverse effect on that staff member’s ability to carry out normal day-to-day activities?

Guidance to the EqA helps us understand what 'normal day to day activities' are and how Employment Tribunals will approach this question. It states:

"In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities."

The examples above are not exhaustive. Highly specialised skills are unlikely to be 'normal' activities as are activities that only individuals or a small group of individuals carry out.

Is the effect on the staff member substantial?

For a Claimant to show that the impairment has a 'substantial' effect on their ability to carry out the pleaded 'normal day to day activities' can be difficult. Counter intuitively, 'substantial' means 'more than minor or trivial'.

An Employment Tribunal considers the facts of each case. The loss of sense of smell or taste (associated with Covid) is arguably not substantial. If fatigue means you are unable to get out of bed or you struggle breathing (especially when combined with another condition such as asthma), Employment Tribunals may well conclude this is a substantial effect.

Is that effect considered long-term?

This is arguably the most complicated part of the test as to whether an employee with Long Covid is disabled. A Tribunal has to make a decision as to whether the impairment has lasted at least 12 months, is likely to last 12 months or likely to last for the rest of the life of the person affected.

Like most things Covid related, we are in unchartered medical territory which means disability is likely to be contested. Pre-Covid, Tribunals often issue directions for medical evidence to help them decide these four questions. Given the medical uncertainty as to how long the effects of Covid might last this should leave plenty of scope for arguments. We expect it to be a key battleground in any contested Long Covid disability discrimination claim.

Are there are any precedents that Tribunals will follow?

ME sufferers may have similar medical conditions to those with fatigue related Long Covid symptoms. Employment Tribunals have in the past accepted those with ME are disabled under the EqA. Of particular interest to Long Covid claims is that ME symptoms can come and go. Tribunals have previously accepted that someone with ME had 'long-term' impairments. We can see scope for similar arguments when considering Long Covid fatigue type conditions.

What should employers be thinking about now?

Long Covid conditions may be a disability under the EqA, although we would expect many claims to fail on the grounds of how long the condition will or has lasted. To protect your organisation given the uncertainty at present we could suggest the following:

1.  Do not treat staff with Long Covid less favourably or unfavourably because of their health. Examples include not recruiting someone because of a poor attendance record in the pandemic or performance managing staff because they can’t carry out their role properly because of their health. This could lead to claims of direct disability discrimination, or the now much more commonly pleaded discrimination arising from a disability claim;

2.  Consider making reasonable adjustments to someone’s role and workplace. If someone appears disabled because of Long Covid it would be sensible to get medical advice on their health. This could then help you decide what (if any) adjustments you need to make to their role or workplace. Example adjustments may include flexible working, remaining at home post lockdown, changes to desks/chairs (if staff have muscle issues for example) or reduced hours;

3.  Proactively manage Long Covid absence. It may appear safe not to deal with potential Long Covid issues but they should be tackled as soon as possible. Absence policies should be followed. Consultation should take place with staff and referrals to occupational health considered. Careful records should be made of how someone’s absence from the business or their inability to do their job is impacting the business (after reasonable adjustments have been considered and implemented) in case you eventually need to dismiss on ill-health grounds;

4.  Be wary of disability discrimination harassment in the workplace. Covid and the pandemic can be divisive topics. Some staff may resent others for taking prolonged time off work for Long Covid reasons. An employer may be liable vicariously for harassment by its staff of others on the grounds of a disability; and

5.  Train your managers about Long Covid. Reinforce to them that polices and procedures should be followed in cases of Long Covid and that staff may be disabled under the EqA.

Research data suggests that some categories of staff may suffer more than others from Covid and therefore Long Covid. Black, Asian and minority groups are thought to be disproportionately impacted by Covid as are women and older people. It remains to be seen whether discrimination claims based on other protected characteristics (race or age, for example) may emerge at a later date.