In the case of Burke v Turning Point Scotland, the Employment Appeal Tribunal (EAT) recently awarded that, in some cases, long Covid may be defined as a disability and therefore offered protected under the Equality Act (2010).
Understandably, this raises questions for employers, many of whom are facing rising cases of long Covid from employees. As a relatively new disease, there are many unknowns regarding the severity and longevity of long Covid and ultimately this requires employers to make a difficult decision as to whether the condition is likely to constitute a disability for their employee.
What is the definition of a disability?
In accordance with the Equality Act (2010), a condition must meet the following parameters to meet the definition of disability,
“a physical or mental impairment” which “has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
The Act defines an impairment as long-term if it has lasted or is likely to last for 12 months.
What does the verdict mean for employers?
The outcome of this case (the first of its kind) reinforces the message to employers to exercise caution when managing employee with long covid. The key message that symptoms may change, improve or deteriorate over an extended period of time may extend such a condition to that of a disability. Although medial reports should be obtained, and the usual best practice regarding sickness and capability be followed, employers should be aware that the condition and its status may change over time.
Due to the newness of long Covid and uncertainty of symptoms, current ACAS guidance suggests that employers should focus more closely on the adjustments that can be made to support employees rather than trying to work out of the employee’s condition amounts to a disability.
Our top guidance for employers:
- Ensure robust short term and/or intermittent sickness absence processes – common patterns associated with long Covid.
- Try to avoid frustration of fluctuating absences from clouding decision making regarding the future of an employee related to long Covid.
- Continue to seek external medical advice and input from occupational health advisers. But, be aware that these are not legally binding and therefore should be taken as a part of the bigger picture throughout the decision making process.
- Consider realistic and potentially long-lasting adjustments for employees suffering from long Covid and continue to review internal processes to support employees on a long-term basis. Adjustments might include a phased return to work, longer rest periods or a change to duties.
For further information or support with managing sickness absence in your business, get in touch with one of the team at Nockolds HR today on 0345 646 0406 or fill in our online enquiry form.