According to the Office for National Statistics (ONS), an estimated 1.1 million people are experiencing symptoms persisting for more than four weeks after their first suspected Covid-19 infection that is not explained by other causes. Around 405,000 suspected they first had Covid-19 at least one year previously and 211,000 or 19 per cent reported that their ability to undertake activities had been ‘limited a lot’. The age group most affected was those aged 35-69.
Unlike Covid-19, where the most seriously affected are concentrated among the most elderly, long Covid is very much a working-age condition. Employers should beware.
Although understanding of the mechanism by which the virus triggers such profound and widespread symptoms is developing, a raft of cohort studies provides consistent evidence that it is both a real phenomenon and, in many cases, extremely debilitating. The wide range of symptoms include: fatigue, brain fog, anxiety, shortness of breath, joint pain and cardiological issues.
Personal injury claims
Few claims have so far been brought against employers or occupiers of premises for Covid-19 disease. The evidential difficulty of proving causation – that the disease was caused as a result of a breach of the employer’s or occupier’s duty of care to the individual – will make the majority of claims unattractive.
With long Covid, however, the potential claim value could be very significant indeed. Many sufferers may be unable to return to their previous employment for a significant period, if ever. That may make such claims more attractive to claimants’ solicitors and worth the evidential effort.
Even so, many claimants will face considerable difficulty proving that the long Covid symptoms complained of were indeed a result of initial the disease rather than arising from some other cause.
Employment law and health and safety issues
For many employers, a greater risk of personal injury claims arises from a failure to effectively manage the return of vulnerable sufferers to the workplace. Employers face the prospect of a significant number of workers returning with a reduced capacity to undertake their previous duties, whether physically or mentally.
Ongoing ailments might be aggravated, or fresh injury caused, by a failure to adequately assess the individual’s (reduced) capabilities and to introduce reasonable adjustments, rendering the employer liable for the additional harm suffered. These failures may also potentially amount to disability discrimination.
Not every employee with long Covid will meet the legal definition of disability contained in the Equality Act 2010. They must have ‘a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. Many sufferers are unlikely to meet the test for ‘long term’, which means that the condition has lasted or is likely to last 12 months or more. If they do, they have protection from disability discrimination and there is a duty on their employer to make reasonable adjustments to alleviate any substantial disadvantage.
By their nature, assessments of whether an employee is disabled are fact-specific and should be determined on a case-by-case basis. They are also dynamic; an employee may not be deemed disabled at one point in time but may be at a later stage. Employers should also consider those indirectly affected, as well as those who are suffering with long Covid, such as those caring or living with someone who has the condition.
Workplace stress claims may also increase as employees struggle to cope with the demands placed on them, and employers should consider their mental health support. Common symptoms complained of by long Covid sufferers are anxiety and depression.
A failure to assess the returning employee’s capabilities properly, to consider suitable adjustments and to monitor their progress may be considered a breach of the employer’s duty of care. This may leave them exposed to a personal injury claim in respect of any psychiatric injury and losses attributable to that failure.
It may also result in a breach of the implied term mutual trust and confidence which underpins the employment relationship and could lead to other legal claims, such as constructive dismissal.
Employers should seek support from occupational health or private healthcare providers, for both diagnostic guidance and assistance with suitable adjustments and the management of long Covid in the workplace. Some also run specific long Covid programmes.
They should also think creatively about their internal resources. For example, building flexibility in their HR processes, developing staff support groups for those who have been affected (directly or indirectly) and training managers to increase awareness.
Long Covid is a developing area, both scientifically and regarding its impact on the workplace. Employers should stay informed, support their employees, and take practical measures to reduce the risk of costly legal claims.
Gregor Woods is a partner in the defendant personal injury team and Anna Cope a partner in the employment group, both at CMS