Is long Covid classed as a disability? Here’s what employers should know

An employment tribunal case which found that an individual’s long Covid symptoms amounted to a disability could lead to an increase in similar claims from those also affected by the condition.

Landmark ruling

A caretaker who had worked for a charity in Scotland for nearly 20 years contracted Covid in November 2020. He was initially signed off work but following an assessment by the employer’s occupational health provider, was advised he could return to work in April 2021.

However, the nature of his illness and how it had affected his health meant that the caretaker was unable to return to work successfully and eventually his pay was stopped in June 2021. Symptoms associated with long Covid include weakness or tiredness, shortness of breath, difficulty concentrating and loss of taste.

By August 2021, his employer assessed that he would not be returning to work, failing to identify any way in which the job could be adapted for him. Eventually the employee was dismissed by the company.

Employment tribunal

The employee took the case to an employment tribunal, looking to prove that he could be classed as disabled as a result of complications arising from Covid under the definition in the Equality Act 2010 – which states that a disability is classed as having a physical or mental impairment that has a substantial or long-term (12 months or more) negative effect on your ability to do normal daily activities.

The employment tribunal had to consider whether the claimant could demonstrate that they could not shop or cook for themselves, which would determine that they were disabled. As a result, the employment tribunal ruled in the claimant’s favour.

What should employers know about long Covid?

Though deemed as somewhat of a landmark employment tribunal ruling, this particular case does not mean that all cases of long Covid will be considered as a disability as each case has to be decided on its own circumstances.

A study carried out by the Trades Union Congress (TUC) and the Long Covid Support Employment Group (LCSEG) found that two thirds of employees with long Covid surveyed have experienced unfair treatment at work.

Employers have a duty to ensure the health, safety and welfare of all employees and this includes a duty to take into account any specific vulnerabilities of individuals. Anyone suffering from long Covid who returns to work may be at risk from accidents, for example if they are having trouble concentrating. The risks would need to be assessed for each employee and reasonable adjustments made to ensure compliance with the Equality Act. For complex cases, the use of an occupational health provider may be of use.

For more information on how employers can fulfil their responsibilities in relation to keeping employees safe at work, contact our team of experts today.