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Is Long Covid a disability?

There has been much discussion in the media as to whether Long Covid is a disability or not and cases are starting to appear in the Employment Tribunal. So what are the issues and how might it affect your business?

The EHRC put out a statement last month (9th May 2022) after there was some confusion as to whether or not Long Covid (normally diagnosed if an individual still has Covid-19 symptoms 3 months or more after having contracted the virus). The EHRC said:

"There continues to be discussion of the various symptoms related to Covid-19 that are often referred to as ‘long Covid’ and whether they would constitute a disability under the Equality Act.

"Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act.

"This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.

"We will continue to monitor developments regarding long-Covid’s legal status as a disability under the Equality Act and consider any findings by the courts.

"To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases."

However, cases are now starting to appear in Tribunals and the latest one, Burke V Turning Point Scotland has determined that in that particular case, on the basis of the evidence presented, Mr Burke, a caretaker was disabled with regards to his Long Covid symptoms. To read more about the details of the case see https://www.hrsolutions-uk.com/case-ruling-for-long-covid/

However, employers need to bear in mind that this is only an Employment Tribunal decision and as such cannot be relied upon (only those at Appeal Tribunal level and above can be used in that way). Each case will be determined on the facts of the case - the symptoms, length of time it has affected someone and whether or not it has a significant impact on someone’s daily life (and significant means “more than trivial”. It was only a matter of time before a case like this would arise given that people will have had it for over a year now.

So if you have an employee with apparent long Covid symptoms and are concerned about how to deal with the situation, please get in touch.
Posted on 29 Jun 2022
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