A disability is defined as a physical or mental impairment that has a long-term and substantial adverse effect on a person’s ability to do normal day-to-day activities.
What is long term?
The physical or mental impairment will affect the person or is likely to affect them for at least a year and/or it’s likely to last for the rest of their life
Substantial Adverse Effect
Substantial adverse effect means more than just a minor impact on a person’s life or how they can do things but which may fluctuate or change and may not happen all the time.
Long COVID is still a new illness so it may take time to understand it fully. It can affect a person’s day-to-day activities and it’s currently believed that it can last or come and go for several months and even years.
As an Employer you should focus on what reasonable adjustments you can make to enable the employee to work and not focus on trying to work out if an employee’s condition is a disability.
As an employer you should be careful to avoid other types of discrimination such as age, disability, race or sex when considering long COVID and in particular long COVID has been found to more severely affect:-
- older people
- ethnic minorities
- women
Employers must avoid discriminating by age, disability, race or sex.
Recent case regarding Long Covid made by the Employment Tribunal
An Employment Tribunal recently ruled that the symptoms brought about by long COVID may be classed as a disability.
A caretaker (claimant) brought claims of disability discrimination and unfair dismissal after being sacked in 2021. He had worked in the role since 2001, but had been unable to attend work for nine months after suffering substantial and long-term effects from COVID-19 after contracting the virus in November 2020.
The tribunal considered and decided at a preliminary hearing that the claimant’s symptoms during this time amounted to a disability within the definition of the Equality Act 2010. The Tribunal gave the claimant permission to proceed with his claim of disability discrimination against his former employer.
Employment Tribunal decisions are not binding, but they are persuasive, and may still be used by negotiators to point to employers the direction a tribunal might take in similar circumstances.
It’s important that as an employer you consider the decision and make reasonable adjustments and support to their staff with long COVID.
