Long Covid and the workplace

I am sure many of you will know someone who has developed long Covid - a condition currently defined as Covid symptoms continuing for more than four weeks after the first suspected Covid infection. You may also, like me, have heard accounts of individuals who were at the gym before work and completing triathlons at the weekend, now struggling to walk upstairs or manage a full working day.

There are a lot of (mainly medical) unknowns about long Covid, but this blog considers what we do know - about prevalence, what workers are saying, and what the courts are saying about its status as a disability. We then briefly look at what employers should think about when managing a worker or employee with long Covid.

Prevalence

The Office for National Statistics (ONS) is publishing monthly reports on the prevalence of long Covid in the UK and associated activity limitation. The August 2022 figures tell us that:

• an estimated 8 million people in private households in the UK were experiencing self-reported long Covid,
  
  
• of those reporting with long Covid 43 per cent had the symptoms for at least a year and 21 per cent for at least two years,
  
  
• an estimated 3 million reported that long Covid adversely impacted their ability to undertake day to day activities,
  
  
• the groups that have been particularly impacted include people aged 35 – 69; women; those working in social care; and those who already have activity-limiting health condition or disability, and
  
  
• the most common reported symptom was fatigue (54 per cent) followed by shortness of breath (31 per cent).

The NHS website lists various symptoms which include extreme tiredness, chest pain, problems with memory and concentration, problems sleeping, depression and anxiety, joint pain, stomach pains.

The TUC published a report in June 2021 of their members’ experiences of long Covid, noting that the severity of symptoms can fluctuate, and ACAS’s brief advice on long Covid, makes the same observation.

What did the court say?

Back in May 2022, the Equality and Human Rights Commission said (over Twitter) that there is currently a lack of case law and scientific consensus about long Covid. And followed up by saying that although it is not currently recognised as an automatic disability, if someone’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long Covid could in such circumstances amount to a disability, which would be considered by the courts in the usual way.

There has now been a case looking at this very question. On 10 June 2022, the Employment Tribunal (Scotland) found that a Claimant who reported suffering with long Covid was disabled for the purposes of the Equality Act 2010 from 15 November 2020 – 13 August 2021. This is of course a factual assessment applying the conditions of the Equality Act 2010 and does not mean long Covid will always be a disability. It does however, show us what a Tribunal will consider relevant to the question of disability in this context.

By way of background, the Claimant in this case tested positive for Covid-19 on 15 November 2020 and took sick leave. He had flu-like symptoms. After the isolation period he developed symptoms of headache and fatigue, such that after waking, showering and dressing he had to lie down to rest from exhaustion. He also reported loss of appetite, muscle pain and poor sleep at night. He obtained fit notes for his absence period which noted variously “fatigue” “after-effects of long Covid” and “post viral fatigue syndrome”. He would improve and then deteriorate again, which created uncertainty and anxiety. There were also OH reports which noted his fatigue but did not think it likely he was disabled for the purposes of the Equality Act 2010 and in June an OH report stated he was fit for work, having assessed the Claimant when he was going through a better period. There were periods when the Claimant felt like he could go back to work, only to change his mind again after a down-turn.

The Claimant was ultimately dismissed for his ongoing absence. His employer accepted he was disabled for the period 25 November 2021 to 15 June 2021 (so almost seven months), but not thereafter when they considered that he had recovered sufficiently from his long Covid symptoms to attend work (as per the OH report). The Respondent sought, in part, to rely on the lack of medical evidence and the lack of specificity in what was provided.

The Tribunal preferred the Claimant’s evidence. The Tribunal took the TUC report (cited above) into account when finding that long Covid was a “recognised difficulty” and noted that the symptoms reported by the TUC’s members were largely reflective of the Claimant’s experience, in particular that sufferers would have “good days and bad days”. The Tribunal saw no reason why the Claimant would exaggerate his symptoms – his sick pay ultimately ran out and there was no financial incentive to stay off.

In terms of longevity, the Tribunal cited the Respondent’s own assessment in the dismissal letter which stated that “there does not appear to be a date on which there is a likelihood of [the Claimant] being able to return to work”.

What to think about if you have a worker with long Covid?

Although there is some medical uncertainty around long Covid it is plainly a recognised condition that could amount to a disability, meaning the usual obligations would apply – ie the obligation to make reasonable adjustments and obligation not to unlawfully discriminate on the basis of the disability (directly or indirectly) or from something arising from the disability (eg absence).

Some things to consider:

• How to keep your team’s knowledge and awareness up to date, reducing the risk of long Covid being overlooked, misunderstood or dismissed: the Faculty of Occupational Medicine has some helpful information aimed at managers and, there is no doubt that further reports and statistics will continue to be pushed as data is collected and knowledge increases.
  
  
• Maintaining an open line of communication, and encouraging employees to speak with managers if they are struggling – symptoms can vary and fluctuate so regular check-ins will help you better understand your workers’ needs and what you can reasonably do to support them.
  
  
• Seeking regular advice from OH (or other medical professionals). As noted in the case above, simply because one OH report says “fit to work” does not mean a worker is in fact fit to work and/or not disabled. It was key in the case above that the symptoms of long Covid fluctuate over time so ensure you are taking action on the most up to date information and with an awareness of possible change.
  
  
• It is clear that long Covid can last for a long time and we often see employers offering great support at the outset but this waning over time. Ensure your strategies and adjustments accommodate long-term solutions that are reviewed and flexible.
  
  
• Follow usual good practice when managing long term sickness absence, following your policies and the ACAS guidance.

If you require further information about anything covered in this blog, please contact Sophia Coles or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2022