This month marks the 25th anniversary of the Disability Discrimination Act 1995 (DDA), subsequently incorporated into the Equality Act 2010 (EqA 2010). It was introduced to provide similar levels of protection for the disabled as had been previously provided for gender and ethnicity under the Sex Discrimination Act and Race Relations Act. It also introduced the concept of ‘reasonable adjustments’ in employment, by imposing an obligation on employers to make adjustments in an attempt to level the playing field in the workplace.
Among the many issues thrown up by the Covid-19 pandemic are questions relating to how employers should treat those employees affected by it. Not least the looming long-term consequences around so-called ‘long Covid’, its medical impact and whether it is likely to be classified as a disability under EqA 2010.
For some, the symptoms of Covid-19 continue for months after their initial illness, leading to issues with their return to work. According to a study by King's College London, around 300,000 people in the UK could experience long Covid in the future. Equally alarmingly, around 2 per cent report symptoms that last for more than three months, which would equate to at least 60,000 people in the UK from the first wave.
Figures so far suggest that long Covid has a higher prevalence among those of working age. The median age of those affected is 45, and it affects women more than men. If long Covid is classified as a disability for the purposes of EqA 2010, which looks distinctly possible, this raises serious issues surrounding employers’ obligations generally and especially their considerations in making reasonable adjustments. As ever, there is a balancing act between the investment of time and costs, versus the risk of potential claims. While it is too early to accurately predict this risk or its cost at this stage, generally prevention is better than a cure.
Disability under the EA 2010 is defined as a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
It is easy to see therefore how the symptoms of long Covid are likely to be classified as a physical impairment. Those symptoms can include excessive fatigue, insomnia, muscle pain, heart and lung damage, shortness of breath, headaches, loss of taste and smell, intermittent fevers and inability to concentrate. Other symptoms include cognitive issues such as ‘brain fog’, hearing impairment and mental health problems.
The next key question around its classification as a legal disability would be whether the negative effect is ‘substantial’ and ‘long term’.
‘Substantial’ is determined on a case-by-case basis, but has to be ‘more than minor or trivial’. While some of the symptoms – such as loss of smell or taste – would probably not be regarded as such, other more serious physical symptoms would almost certainly be so. They could lead to time off and therefore trigger issues for the employer. Equally a mental health condition could also be regarded as substantial.
‘Long-term’ means it has lasted or is likely to last for at least 12 months or more. It is too early to say whether long Covid lasts this long. However, it is definitely something that employers should be aware of. An impairment is also considered to be long term if the effects are recurring or fluctuating.
If individuals with long Covid are ultimately classified as disabled under EqA 2010, and if employers do not treat their employees in a non-discriminatory way, as well as making reasonable adjustments, they will risk claims for discrimination further down the line.
Kathryn Fielder is an employment lawyer at B P Collins