With the continuing relaxation of COVID restrictions, we have already seen an increase in infection rates and we are told we are likely to experience waves of infections for some time to come. While great progress has been made in terms of the national vaccination programme, we know that being vaccinated does not prevent you from catching or spreading COVID. There are also growing concerns about the prevalence of ‘long COVID’, a term used to describe the symptoms and effects of a COVID-19 infection lasting longer than four weeks beyond the initial diagnosis.
On 1 July, the Office for National Statistics reported that an estimated 962,000 people living in private households in the UK (1.5% of the population) were experiencing self-reported long COVID as at 6 June 2021.
Symptoms of long COVID may include persistent fatigue, shortness of breath, brain fog, depression, anxiety and a range of other symptoms and there is still uncertainty around the prognosis of long COVID as each person can experience a range of different symptoms.
Long COVID and disability
It not yet clear whether employers should treat long COVID as a disability within the meaning of the Equality Act 2010, but if long COVID symptoms have a “substantial adverse effect” on an employee carrying out “normal day-to-day activities” and the impairment has lasted or is likely to last for 12 months, it could fall within the definition of a disability. This would trigger duties on the employer to make reasonable adjustments to the employee’s role or workplace and prohibits any less favourable treatment.
While we do not yet know the approach the Employment Tribunal will take to cases involving long COVID, it can be helpful to consider case law relating to conditions with similar symptoms, such as ME. In the 2009 case of Chief Constable of Dumfries & Galloway Constabulary v Adams, the Employment Appeal Tribunal upheld an Employment Tribunal’s decision that an employee who suffered from ME was disabled. While the effects of her condition waxed and waned, it was “consistent and persistent” and so met the criteria of being “substantial” and “long-term”.
Distinct from the issue of disability, long COVID will give rise to issues around absence management. Long COVID sufferers may have long periods of sickness absence and many employers will want to treat this in the same way as other employees on long-term sickness absence. But what issues should you watch out for to avoid potential claims of unfair dismissal and/or discrimination?
- Review your sickness policies now to ensure they are fit for purpose, bearing in mind the special considerations relevant to long COVID.
- If someone is off sick, they might feel isolated or need support to return to work. You should agree how and when to make contact during their absence and talk about ways to support them as they return.
- When the employee feels able to return, discuss with them any support they may need. It is helpful to obtain an occupational health assessment to get an insight into the employee’s health and whether any adjustments (for example, a phased return or different working hours) would be helpful.
- If you feel the employee is not able to do their work or if the absence is extensive, consider whether there is anything further you can do to help before initiating your capability procedure. Obtain further occupational health reports at regular intervals so that any decision is based on up to date advice.
- Make sure that you follow your own capability process – even if the employee has less than 2 years’ service (and therefore cannot bring claims for ordinary unfair dismissal) they may still have claims for disability discrimination if the matter is not handled correctly. Also, from a practical perspective it is helpful to document your compliance with a proper procedure.
- Where dismissal for ill-health is contemplated, you should usually have held at least two previous meetings with the employee. Ensure you have satisfied yourself that the reason for dismissal is ill-health and that you have adopted a fair procedure – take advice if you are not sure whether you are adopting a legally fair procedure.
- Are there any alternatives to dismissal, for example ill-health early retirement? Or does the employee meet the criteria for cover under any permanent health insurance policy? Would any of the alternative options be viable and sustainable?
While it remains to be seen what the true long-term impact of long COVID will be, taking sensible steps to manage sickness absence now is crucial in order to mitigate possible damage to your business, including potential Employment Tribunal claims.