There just seems to be no escape from COVID-19. For some, the viral grenade took the form of furlough, job loss, business turndown or failure. For others, it meant hospitalisation and death. But what about those in the halfway house that is long COVID – where they have recovered to an extent but are left with semi-permanent symptoms which may be invisible and hard to prove?
The problem with long COVID is that “it’s a new condition and we don’t have any prior evidence to determine its potential impact; that data is still being collected,” says John Palmer, a senior adviser at ACAS, the government’s workplace conciliation service. However, John has seen long COVID affect a person’s day-to-day activities and how it can last, or come and go, for several months.
Long COVID is a problem for employers and employees alike. According to an Office for National Statistics (ONS) report published in February 2021 using data from just over 9,000 respondents, 22.1 percent were still reporting symptoms five weeks after infection and 9.8 percent after 12 weeks (Ayoubkhani et al., 2021). At the five-week mark 23.6 percent of females reported symptoms versus 20.7 percent for males.
John points to data from June 2021 (Ayoubkhani and Pawelek, 2021) when “the ONS published statistics that said nearly a million people in the UK had self-reported long COVID… a considerable number of employees have been, or will be, diagnosed with it and therefore the condition is likely to be a factor for many employers in all different manner of workplaces”.
In her day-to-day role, Jennifer Mann, principal associate in the employment department of Eversheds Sutherland, is seeing queries from clients in relation to employees with long COVID and associated long-term sickness absence or repeated short-term absences.
The matter usually arises, says Jennifer, when handling a situation of long-term sick leave. When it does arise “it is important to meet with the employee to understand their views on their condition and when they anticipate a return to work,” she says. From there, Jennifer advises seeking medical evidence via a report from the employee’s GP or occupational health provider to understand the diagnosis, prognosis and whether there is anything the employer can do to support a return to work.
The reason for her stance is because, as Jennifer points out, “the law underlying [long-term illnesses] is reasonably settled. But what is less clear is whether long COVID amounts to a disability for the purposes of the Equality Act 2010.”
“The law underlying [long-term illnesses] is reasonably settled. But what is less clear is whether long COVID amounts to a disability for the purposes of the Equality Act 2010”
As the law presently reads, if an employee is disabled a higher burden is placed on an employer to demonstrate that all reasonable adjustments have been made to assist the employee in a return to work. Also, any less favourable treatment, such as dismissal, is objectively justified as a proportionate means of achieving a legitimate aim.
Disability is defined for our purposes as a physical or mental impairment that has a “substantial” and “long-term” negative effect on a person’s ability to do normal day-to-day activities. “‘Substantial’”, says Jennifer, “is something which is more than minor or trivial. It could mean an inability, or taking much longer than it usually would, to get dressed, do housework or carry shopping bags. ‘Long-term’ means a condition that has lasted or is likely to last 12 months or more.”
With this definition Jennifer can see why long COVID could amount to a disability under the Equality Act, but she notes that “each case will need to be determined on its merits based on the information from the employee and their doctor”.
John thinks the same and expands on the time qualifier: “‘Long-term’ means the impairment has lasted, or will last, for at least 12 months, and can come and go or is likely to last for the rest of the person’s life.”
Many employers may choose to err on the side of caution and operate as if employees with long COVID are protected by the Equality Act 2010, particularly when so little is known about the condition and whether it is likely to last for more than 12 months
Many employers may choose to err on the side of caution and operate as if employees with long COVID are protected by the Equality Act 2010, particularly when so little is known about the condition and whether it is likely to last for more than 12 months. More than 18 months into the pandemic, “we are seeing cases of long COVID that have already lasted more than 12 months,” observes Jennifer.
It is sensible, according to John, that employers should “focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability”.
Dealing with a claim
So, how should employers deal with employees claiming long COVID, especially when symptoms are not obvious?
Jennifer’s view is surprisingly simple. She says that “it is not for an employer to diagnose or ‘disprove’ a condition and the impact it has on the employee. Rather, it is incumbent upon them to understand the employee’s view and the medical evidence.” This will allow an assessment of when a return to work is likely in the reasonably foreseeable future and whether there is anything they can do to assist the employee.
“It is not for an employer to diagnose or ‘disprove’ a condition and the impact it has on the employee. Rather, it is incumbent upon them to understand the employee’s view and the medical evidence”
John takes a similar line. He says that “when it comes to supporting an employee directly, the best starting point is to keep channels open between the manager and the employee so an ongoing conversation can take place about ways to offer support”.
Long COVID needs to be treated in the same way as any other illness or long-term incapacity. With a period of sickness absence for longer than seven calendar days, no matter how many days they work each week, employees should get a fit note from their doctor.
There is a legal duty placed upon employers “to consider making reasonable adjustments when they know or could be expected to know an employee or job applicant has a disability and if an employee or job applicant with a disability asks for adjustments,” details John.
However, what amounts to a “reasonable” adjustment will, says Jennifer, depend on the information from the employee, the medical evidence and what the business can feasibly accommodate.
Can an employer dismiss an employee in this situation? Both Jennifer and John say the same: an employer dealing with long COVID needs to follow a fair process and should have regard to its own absence management policy.
Jennifer says that “usually, a fair process will involve meeting the employee a number of times, as the prognosis may change, and understanding the medical evidence”. She adds that it may be appropriate to dismiss if it becomes clear that there is unlikely to be a return to work in the reasonably foreseeable future, there is nothing the employer can do to support the employee in a return and any reasonable adjustments have been explored.
It may be appropriate to dismiss if it becomes clear that there is unlikely to be a return to work in the reasonably foreseeable future, there is nothing the employer can do to support the employee in a return and any reasonable adjustments have been explored
John approaches this from a slightly different angle – that the employee has not done anything wrong, “but something has still happened that means they are no longer able to carry out the job they were employed to do”.
Nevertheless, Jennifer says that “the employee should be warned that the viability of their employment is in question and prior to the potential final meeting, they should be advised that one outcome of the meeting may be dismissal”. That said, it can be difficult for an employer to justify a dismissal taking place before company sick pay has been exhausted. Similarly, if there is a group income protection policy in place, whether the employee could benefit should be explored before any dismissal.
If an employer does not follow a full and fair procedure, an employee could have a case for unfair dismissal even if the reason for dismissing them was valid.
Employers should be under no illusion that if a case is brought before an employment tribunal and it finds that an employee has been unfairly dismissed, compensation could be awarded based on an employee’s loss of earnings
Employers should be under no illusion that if a case is brought before an employment tribunal and it finds that an employee has been unfairly dismissed, compensation could be awarded based on an employee’s loss of earnings. As Jennifer outlines, compensation comprises a basic award, which uses the same formula as a statutory redundancy payment, and a compensatory award of up to one year’s pay, presently capped at £89,493.
If the treatment is found to be discriminatory or that reasonable adjustments have not been made, compensation will be uncapped and will reflect likely ongoing loss of earnings and an award for injury to feelings.
COVID-19 is the stuff of science fiction. But it is with us and while the majority deal with it, many will suffer well into the future; it is a problem that they, their families and their employers will have to deal with for some time.