Is “long Covid” a disability?

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With an estimated 1.8 million people in the UK now suffering with long Covid, employers need to consider how to manage staff with the condition. In this article, we explain why long Covid may qualify as a disability (despite some confused guidance from the EHRC) and the steps that employers should take as a result.

What is a disability?

The Equality Act 2010 defines what “disability” means for the purposes of discrimination in the workplace. A small number of conditions are automatically deemed to be disabilities. These are blindness, certain forms of sight impairment, severe disfigurement, cancer, HIV, and multiple sclerosis.

However, in most cases, the relevant questions for establishing whether a person is disabled are:

Does the person have a physical or mental impairment?
If yes, does this have an adverse effect on their ability to carry out normal day-to-day activities?
If yes, is the adverse effect substantial?
If yes, is the adverse effect also long-term (e. has lasted more than 12 months, or is likely to last more than 12 months)?

It is not necessary for an impairment to have a medically diagnosed cause. This is because it is the effect of the impairment that matters rather than the cause.

“Normal day-to-day activities” are the things people do on a regular or daily basis, such as shopping, eating, reading, writing, walking, travelling, and taking part in social activities. Deciding whether an impairment has an adverse effect on such activities is usually straightforward.

The more difficult question will usually be whether the adverse effect is “substantial”. The Act simply says that “substantial” means more than minor or trivial. Where it is not clear whether an adverse effect is more than minor or trivial, a number of factors should be considered, including the time taken to complete a task and the way in which it is carried out. In most cases, medication or coping mechanisms which improve or hide the impact of a condition should be ignored.

What is “long Covid”?

After being infected with Covid, most people find that their symptoms resolve within four weeks. However, some people experience symptoms for longer periods. “Long Covid” is a shorthand term used to describe symptoms that continue after the acute phase of a Covid infection. The NHS Your Covid Recovery webpage states that long Covid can take two forms:

Ongoing symptomatic Covid: this is where symptoms continue for more than four weeks but fewer than 12 weeks.
Post Covid syndrome: this is where symptoms continue for more than twelve weeks and cannot be explained by another condition

There are many symptoms of long Covid, and the particular combination of symptoms experienced will vary from person to person. The most commonly reported symptoms include the following:

• Breathlessness

• Cough

• Chest tightness

• Chest pain

• Palpitations

• Fatigue

• Fever

• Pain

• Cognitive impairment (‘brain fog’, loss of concentration or memory issues)

• Headache

• Sleep disturbance

• Pins and needles or numbness

• Dizziness

• Abdominal pain

• Nausea

• Diarrhoea

• Weight loss

• Joint pain

• Muscle pain

• Symptoms of depression

• Symptoms of anxiety

• Tinnitus

• Earache

• Sore throat

• Loss of taste and/or smell

• Skin rashes

There is currently no test available to diagnose long Covid and nor are any drug treatments available. Treatment of long Covid is focused on managing symptoms and increasing activity.

Could long Covid be classified as a disability?

The simple answer is: “Yes, but not always”.

In May 2022, the Office of National Statistics (ONS) estimated that about 1.8 million people in the UK (about 2.8% of the population) have long Covid, with 73% reporting symptoms lasting for 12 weeks or more, 44% reporting symptoms lasting a year or more and 13% reporting symptoms lasting two years or more. Of the 1.8 million, 67% said it had affected their day-to-day activities, with 19% reporting that it had done so in a significant way.

Therefore, a subset of those with long Covid are experiencing symptoms which are having a significant effect on their day-to-day activities, and which have lasted (or are likely to last) for 12 months or more. That being the case, it seems highly likely that at least some people with long Covid will pass the disability test outlined above and so be protected from discrimination in the workplace. Indeed, in the recent case of Matthews v Razors Edge Group Ltd, an Employment Tribunal accepted that an employee was disabled by reason of long Covid.

Yet, on 7 May 2022, the Equality and Human Rights Commission (EHRC) – the body responsible for providing guidance on the Equality Act 2010 – tweeted that long Covid should not be treated as a disability. The tweet said that “Without case law or scientific consensus, EHRC does not recommend that “long Covid” be treated as a disability”. The post was surprising given that we know that disabilities do not need to have a medically diagnosed cause and that the test focuses on the effect of the impairment on the individual. The ONS figures demonstrate that some people with long Covid are experiencing significant effects on their day-to-day activities, meaning that they might qualify as disabled.

Unsurprisingly, the tweet provoked consternation in many quarters, including amongst those working in the medical and HR arenas. On 9 May 2022 the EHRC issued a “clarificatory” statement. The statement said that long Covid was not a deemed disability and, therefore, not all cases of long Covid will pass the disability test. However, it went on to say: “This does not affect whether long Covid might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.” The statement went on to recommend that employers apply guidance on making reasonable adjustments for disabled people.

So, the EHRC got to the right answer in the end, namely that some people with long Covid may be disabled. The individual will have to pass the four elements of the disability test discussed above. For many, their symptoms will not be serious enough, or sufficiently long-term, but a cohort of unfortunate people may well pass the test.

What should employers do if a worker has long Covid?

If you know, or suspect, that a worker has long Covid, then you should tread carefully given that they may be disabled. If they are disabled, they will be protected against various forms of disability discrimination. In addition, you would be under a positive duty to make reasonable adjustments for them. This duty arises if they are substantially disadvantaged in comparison to non-disabled persons by either a provision, criterion or practice operated by you, a physical feature of the work premises or the absence of an auxiliary aid. A failure to make reasonable adjustments is discriminatory and gives rise to a separate discrimination claim.

Given these risks, employers should ensure that they take the following steps:

Investigate: gather as much information as possible to understand the worker’s health. This includes GP certificates, correspondence, and notes of your own interactions with the worker and notes of any return-to-work meetings. It is advisable to reflect on this at an early stage and keep the position under review. This is especially the case where you are considering taking action against someone for something that may be caused by disability (for example, issuing a warning for high levels of sickness absence).
Decide when to obtain specialist advice: consider carefully when its right to obtain specialist occupational health advice. Depending on the facts, it may be appropriate to wait, but the position should be kept under regular review. As time goes on, the individual’s condition may evolve from one which does not meet the disability test, to one that does.

Give clear instructions when seeking specialist advice: when instructing specialist advisers, take care to summarise accurately the knowledge of the worker’s health and ask the adviser to provide a view on whether the individual is disabled by reference to the different elements of the disability test in the Act.
Follow up where necessary: where the specialist advice is imprecise, incomplete or contradicts other evidence, this should be followed up and further advice sought. This is a particular risk in relation to long Covid, where knowledge of the condition is still in its early stages. Crucially, occupational health reports should not be viewed as determinative, but should be treated as part of the overall picture.
Be pragmatic and don’t be afraid to make adjustments: making adjustments will not necessarily be viewed as a concession of disability status and may help to resolve the issue in hand. Where you have information which suggests that the individual may be disabled, it would be sensible to address the issue of adjustments in a proactive way. For those with long Covid, this may include things like:

adjusting the trigger for disciplinary action in sickness absence policies;
offering a phased return from a period of sickness absence;
providing additional rest breaks;
agreeing flexible working arrangements such as part-time hours and/or homeworking;
changing the worker’s job role and/or adjusting their workload; and/or
providing access to a counsellor.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your Covid strategy or any other issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Was it unfair to dismiss an employee who refused to attend the workplace over concerns about the risk of Covid to his vulnerable children?

In Rodgers v Leeds Laser Cutting Ltd the EAT upheld an Employment Tribunal’s decision that it was not unfair to dismiss an employee who refused to attend work because he was worried about catching Covid and giving it to his vulnerable children.

What does the law say?

There are special provisions governing dismissals that are classified as “automatically” unfair. Importantly, claimants who have been automatically unfairly dismissed do not need to meet the usual two years’ service requirement to bring an “ordinary” unfair dismissal claim.

Employees can claim automatic unfair dismissal on a number of grounds, including for health and safety-related reasons. This includes protection from dismissal for exercising the right to refuse to attend the workplace and/or to take steps to protect themselves where they reasonably believe there is serious and imminent danger in the workplace.

What happened in this case?

Mr Rodgers began working for Leeds Laser Cutting Ltd (the Company) in June 2019. He worked in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working at any one time.

Following the announcement of the first lockdown on 23 March 2020, the Company told employees that the business would remain open but that it was putting in place measures to ensure the safety of staff. A risk assessment had been carried out by an external professional, which made various recommendations relating to social distancing, wiping down surfaces and staggering start/finish/break times. In fact, the Company already had many of these measures in place prior to the risk assessment.

On 29 March 2020, Mr Rodgers sent a text message to his line manager that said he would not return to work until the lockdown had eased because he had a young child with sickle cell anaemia who could become very ill if he caught the virus. In addition, he also had a seven-month-old baby who might have had the same health problems (this was not known at the time). A month later Mr Rodgers was dismissed by the Company. He brought a claim for automatic unfair dismissal, arguing that he had been dismissed because he had exercised his right to leave the workplace to protect himself from serious and imminent danger.

The Employment Tribunal decided that Mr Rodgers had not been automatically unfairly dismissed. It found that Mr Rodgers could not have reasonably believed that there were circumstances of serious and imminent workplace danger at the time that he had refused to attend work. The Tribunal concluded that:

There was no evidence that Mr Rodgers had ever raised any health and safety concerns with the Company. His place of work was large, with only a few people working at any one time, meaning it was not difficult to socially distance. A risk assessment had been carried out and there were reminders about handwashing regularly. Mr Rodgers acknowledged that this information had been communicated to him.
In Mr Rodgers’ text message to his line manager he did not identify any specific risks within the workplace. Nor did he make any indication that he would return if improvements were made to the workplace.
Mr Rodgers argued that the pandemic itself created a serious and imminent workplace danger, regardless of the Company’s safety precautions. Importantly, the Tribunal rejected this, noting that if this were to be the case then any employee could simply down tools on the basis that the virus was circulating in wider society.
Further, his actions (e.g. not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent.

Mt Rodgers appealed to the Employment Appeal Tribunal (EAT).

What did the EAT decide?

The EAT agreed with the Employment Tribunal that the dismissal was not automatically unfair.

The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace.

However, on the facts of this case, the Tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. Even if the Tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.

What does this mean for employers?

As many employers are focusing on reintegrating staff to the workplace, it should be remembered that some workers may still be feeling anxious about coming back and may have underlying reasons for this, including their own health, or that of those they live with or care for.

This case demonstrates that by taking steps to ensure that the workplace is safe, employers can minimise the risk of successful automatic unfair dismissal claims on health and safety grounds. Employers should update risk assessments, implement control measures, and consult with staff about risks in the workplace and return-to-work plans. This should help to reassure anxious staff members that they will be safe at work.

However, where employees are particularly worried about the return to work, other employment rights may come into play. For example, employees who have health conditions that put them at higher risk of severe illness from Covid may be disabled, requiring reasonable adjustments to be made (which could include allowing homeworking). If employees are concerned about returning to the workplace because they live with a vulnerable person, then this could give rise to an associative disability discrimination claim. In BDBF’s recent webinar on “Reluctant Returners”, we looked at the different reasons why employees may be reluctant to the return to the workplace and how employers should manage this. You can view the webinar and accompanying slide presentation here.

Rodgers v Leeds Laser Cutting Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss your Covid strategy, or any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Calling a colleague “bald” can amount to harassment related to sex

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In the recent case of Finn v The British Bung Manufacturing Company Limited an Employment Tribunal held that calling an employee “bald” was harassment related to sex. This was the case even though the “bald” comment was held to have been made on only one occasion.

What happened in this case?

Mr Finn was employed as an electrician by The British Bung Manufacturing Company Limited (the Company) for nearly 24 years. In May 2021, he was dismissed for misconduct. Following his dismissal, Mr Finn brought a suite of claims against the Company including for harassment on the grounds of age and sex, wrongful dismissal, ordinary unfair dismissal, automatic unfair dismissal relating to health and safety and whistleblowing protected disclosures, detriments relating to health and safety and whistleblowing protected disclosures, and victimisation.

Mr Finn brought certain of those claims, including the harassment claim which is the focus of this article, against a colleague, Mr King, who, Mr Finn claimed, had called him an “old bald c***” in July 2019 and, again, in March 2021. After the first comment, Mr Finn had been prepared to let bygones be bygones, and did not raise a formal complaint. There was no evidence of further tensions between Mr Finn and Mr King until the second comment was made in March 2021.

Following the second comment, Mr Finn left the workplace and only returned some two weeks’ later. Upon his return, he attended a meeting with the Company’s Managing Director and Company Secretary at which he produced a statement which clearly displayed the words “West Yorkshire Police” at the top of the document. The Company maintained that by reporting the matter to the police, Mr Finn had breached the relationship of trust and confidence between himself and the Company, and the Company dismissed him following a disciplinary hearing.

The dismissal took place despite repeated protestations by Mr Finn and his son (who was a police officer at West Yorkshire Police) that the matter had not, in fact, been reported to the West Yorkshire Police and was not logged within the police system.

What was decided?

The Employment Tribunal dismissed Mr Finn’s claim of harassment related to age as it held that Mr King had not used the word “old” when he had described Mr Finn as a “bald c***” in July 2019 and that he had not used the words “old bald c***” in March 2021. In any event, the Tribunal held that men of all ages could suffer from baldness and not just those who could be described as old.

However, Mr Finn was successful in his claim for harassment related to sex. The Tribunal found that Mr King had threatened Mr Finn in July 2019 and called him a “bald c***”. The Tribunal found the word “bald” used in this pejorative manner was unwanted conduct. Whilst the Tribunal accepted that “industrial language” was commonplace on the factory floor, it found that Mr King had overstepped the mark by making remarks about Mr Finn’s appearance. The Tribunal reasoned that there was no evidence that Mr Finn complained about the term “c***” used towards him but, instead, complained about the words “old” and “bald” which demonstrated that Mr Finn had been particularly affronted by those words, indicating that the conduct was unwanted.

Mr King admitted in evidence that he had intended to threaten and insult Mr Finn in July 2019 and the Tribunal held that Mr King’s use of the word “bald” had both the purpose and effect of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

On the facts before it, the Tribunal established that there was a clear link between the unwanted harassing words on the one hand and the protected characteristic of sex on the other, given that baldness predominantly affects men and that Mr King had set out with the intention of denigrating Mr Finn based on his baldness.

Although Mr Finn’s claim was 18 months out of time, the Tribunal held that it was just and equitable to extend time to allow Mr Finn to bring his claim.

What does this mean for employers?

The takeaway from this case is that Employment Tribunals are willing to interpret the law purposively and extend time where necessary to allow individuals to bring claims against employers where there are good grounds to do so.

Employers should take steps to ensure that training on bullying, harassment and discrimination is regularly provided, refreshed, and documented so that colleagues understand the risks of overstepping the mark when commenting on another colleague’s personal appearance and characteristics.

If a colleague raises concerns over remarks that have been made about their personal appearance, it is advisable to investigate matters thoroughly to determine whether further action should be taken against the alleged perpetrator, and to improve the culture of your workplace generally. Failure to take such steps could lead time-consuming grievances and Tribunal claims and poor staff morale.

Finn v The British Bung Manufacturing Company Ltd and anor

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact employment lawyers James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

No mercy for claimants who fail to submit Acas Early Conciliation certificate numbers when filing Employment Tribunal claims

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In the recent case of Pryce v Baxter Storey Ltd, the Employment Appeal Tribunal decided that it could not hear a claimant’s sex and race discrimination claims because she had not obtained an Acas Early Conciliation certificate before submitting her Employment Tribunal claim form.

What happened in this case?

On the day the employee was dismissed, she submitted race and sex discrimination claims to the Employment Tribunal, using the “ET1” form. She ticked the box on the ET1 form stating that she did not have an Acas Early Conciliation (EC) certificate number.

Later that day, the employee notified Acas of her claim. Acas told her that she would need an EC certificate and certificate number in order to proceed with the claim. The EC certificate was issued to the employee on 27 August 2019, and she emailed the Employment Tribunal to provide them with the Acas EC certificate number.

The claim was initially accepted by the Employment Tribunal, and the employer submitted a response form. However, during a preliminary hearing, the judge spotted that the EC certificate had been issued after the ET1 form had been submitted. He concluded the claim must be dismissed.

The employee appealed, arguing that the Employment Tribunal should have treated her email of 27 August 2019, enclosing the EC certificate, as a re-presentation of her claim.

What was decided?

The EAT rejected the employee’s appeal. It noted that, as laid down by an Act of Parliament, certain specified proceedings cannot be submitted without an EC certificate (including race and sex discrimination claims). The Employment Tribunal should have rejected the claim as soon as it had been submitted without the EC certificate.

The email enclosing the EC certificate was not considered to be a sufficient re-presentation of the claim.

What does this decision mean for employers?

Employers should be vigilant to procedural errors from claimants in the early stages of litigation. You may be able to argue that a claim should not be heard on the grounds of such errors.

If the employee’s three-month deadline for submitting a claim has passed at the date the error is discovered, the employee may be prevented from submitting a new claim altogether. However, there is still a chance that an Employment Tribunal might accept resubmission of the claim at a late date, on the grounds that it is just and equitable (i.e. fair) to do so.

Pryce v BaxterStorey Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss Acas early conciliation, or any issues relating to the content of this article, please contact employment lawyers Rebecca Rubin (rebeccarubin@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

The Court of Appeal is hearing an appeal in the case of Kong v Gulf International Bank (UK)

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The Court of Appeal is hearing an appeal in the case of Kong v Gulf International Bank (UK) Limited this week. The case addresses the important issue of when the conduct of a whistleblower can be separated from the act of whistleblowing as a justification for dismissal. BDBF LLP, James Laddie QC of Matrix Chambers and Andrew Smith of 11KBW are acting on a pro bono basis for Protect, the whistleblowing charity who are intervening in the case.