On Monday 27 March the Trades Union Congress (TUC) and Long Covid Support (a charity) published a joint report recommending that the Government classify Long Covid as a disability so that employees who suffer the condition benefit from the protections granted by the Equality Act 2010 against disability discrimination.
The impact of Long Covid
Long Covid is an umbrella term that refers to multiple different symptoms such as energy limiting impairments (fatigue), cognitive dysfunction (brain fog) and shortness of breath or difficulty breathing.
According to the data published in January 2023 by the Office of National Statistics, in the UK there may be up to 2 million people suffering from Long Covid.
A survey carried out by TUC and Long Covid Support among 3,097 people with Long Covid found that 66% had experienced one or more types of unfair treatment at work (such as harassment, being disbelieved and threats of disciplinary action) and 14% had lost their job for reasons connected to Long Covid. 50% of the respondents said that they believed they contracted Covid at work.
The definition of disability under the Equality Act 2010
For the purposes of the Equality Act 2010, a person has a disability when they suffer from a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Some conditions are automatically deemed to be disabilities in law (such as cancer, HIV infection, blindness). For these conditions the definition of disability set out above is bypassed and there is no scope of disputing or denying a deemed disability.
Employers who are aware of an employee's disability have a duty to make reasonable adjustments to the work conditions to avoid any substantial disadvantage that that employee may suffer at work as a result of their disability.
Although arguably Long Covid could already fall within the definition of disability, the report claims that the Government should include Long Covid among the deemed disabilities, to give employers clear guidance so that sufferers get appropriate support at work. Existing data show that there is much scepticism about the existence and extent of fatigue and a view that it is not a "real disability", which creates additional barriers to people who need support from their employers.
The report's recommendations and the Government's position
The report urges the Government to designate Long Covid as a disability, make it clear that sufferers are entitled to reasonable adjustments at work (such as flexible working, disability leave or a phased return to the workplace) and classify COVID-19 as an occupational disease, to allow people who contracted COVID-19 through their job to seek compensation. In the case of health and social care workers who have experienced specific types of complications (such as lung fibroids or stroke), ministers should ensure access disablement benefit.
However the Government has confirmed that it has no plans to update the Equality Act 2010 to automatically deem Long Covid to be a disability. Nevertheless, employers should be careful not to infer that Long Covid does not amount to an impairment with legal protection: they will need to undertake an assessment on a case-by-case basis as to whether each sufferer's symptoms satisfy the statutory definition of disability.
In order to reduce the risks of disability discrimination claims, employers should be mindful not to ignore employees who share some or all of their symptoms and who ask for changes to their working conditions (if in doubt, it is always worth seeking the employees' consent to a medical examination), not to disadvantage or treat less favourably workers who suffer from Long Covid and to consider whether reasonable adjustments can be put in place to allow them to return or stay in the job.
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