Long Covid may not always be protected as a disability under the Equality Act, the UK’s equalities watchdog has warned.
In a statement, the Equality and Human Rights Commission (EHRC) said long Covid – the term used to describe coronavirus symptoms that persist for more than four weeks – was not among the conditions listed as being automatically a disability under the Act.
As such, the watchdog said it "cannot say that all cases” would be protected, and that it would be up to individual courts or employment tribunals to decide on a case-by-case basis whether a person’s long Covid symptoms amounted to a disability.
“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,” the statement said.
It continued: “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.”
The EHRC’s statement recommended that to avoid “inadvertent discrimination”, employers considering reasonable adjustments and access to flexible working based on the circumstances of each individual cases.
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The statement has been met with pushback from a number of organisations, including Long Covid Support which, in an open letter to the EHRC posted on Twitter, described the statement as “ill-informed and inaccurate”.
A coalition of #pwLC inc LCS are sendingto @EHRC Their recent puzzling statement contradicts previous advice re #LongCovidWork our employment advocates co-produced w/ partner orgs inc @somceo @CIPDpolicy We are always available for ongoing involvement#NothingAboutUsWithoutUs pic.twitter.com/GmEpuSBKcI— Long Covid Support (@long_covid) May 11, 2022
The organisation warned that the watchdog’s statement could "undermine efforts to ensure that patients living with long Covid do not suffer discrimination at work”.
Lesley Macniven, chair of Long Covid Support’s employment advocacy group and a founder of Long Covid Work, warned that case law was already being established by affected workers who were already taking employers to tribunal, but added that there were other more positive reasons to support employees with long Covid.
“Skills shortages are increasing demand for talent so retention of key workers creates a compelling case beyond the duty of care to treat staff fairly as a 'good' employer,” she said.
Macniven urged firms to take a creative approach and “find a win-win, where the business can retain a valued worker through a very gradual, phased return and the worker can avoid losing not just their health but their financial independence”.
The EHRC’s statement comes as the Office for National Statistics (ONS) earlier this week published data showing that 2.8 per cent of the population outside of care homes were experiencing long Covid. Of these, 67 per cent – equivalent to 1.2 million people – said their symptoms were adversely affecting their ability to undertake day-to-day activities.
Alan Lewis, partner at Constantine Law, said that firms should obtain an expert medical opinion on how the condition affects each individual’s ability to carry out normal day-to-day activities.
“If it appears the condition may fall within the ‘disability’ definition, employers should consider what, if any, reasonable adjustments they can make to work arrangements so that the individual does not suffer a detriment because of the disability,” he advised, citing adjustments including changing job duties and reducing hours or levels of responsibility.
These adjustments could include incorporating regular breaks, home or hybrid working arrangements, amended absence triggers and greater flexibility over last-minute absences, said Kate Palmer, HR advice and consultancy director at Peninsula. She also suggested regular welfare meetings with anyone who has experienced or is experiencing long Covid, or any other long-term medical condition to understand how they are feeling and get any updates on their health.
But, Palmer warned: “Adopting a one-size-fits-all approach in this situation would prove ineffective for both the employee and employer.” Long Covid can affect employees differently, so adjustments must be personalised, she said.
Louise Aston, wellbeing director at Business in the Community (BITC), agreed there was no one-size-fits-all approach and said workplace policies needed to be designed so employers can take a symptom-based approach.
“There is still so much that we don’t know about the lasting impact of Covid, so employers need to ensure that they listen and support employees who continue to experience Covid symptoms long after they stop being contagious,” she explained.