Issue 39 October 2021 - Journal - Page 28
UK Legal Protection
for Workers with Long COVID
Most legal COVID-19 restrictions have now been lifted in Scotland, England and Wales. As a
result, city centres and commuter routes are beginning to resemble what they looked like before the
pandemic. However, it is estimated that more than 2 million people are still suffering the effects of
long COVID. According to a recent survey undertaken by the Office of National Statistics, 6.2%
of adults in Great Britain believe they may have experienced long COVID since the start of the
pandemic. Of this group, 57% reported that long COVID had negatively affected their general
wellbeing, 39% reported it had negatively affected their ability to exercise and 30% reported it had
negatively affected their work.
12 months or longer. It will therefore be for a tribunal
to predict how long the impairment may last. As time
passes, it seems viable that a tribunal could find that
long COVID can amount to a disability under the
As a result, employers must consider how to manage
employees with long COVID. There is not a one-sizefits-all solution, and employers need to consider this in
terms of implementing and following policies.
What is long COVID?
The term "long COVID" has been most commonly
used to describe signs and symptoms that continue to
occur or develop for more than 12 weeks, and are not
explained by an alternative diagnosis, after an individual has contracted and suffered the effects of acute
How should employers approach a case where an
employee says they have long COVID?
Our advice to employers is to treat long COVID as
any other health condition. Employers should ensure
they have relevant medical evidence in front of them
before making any decisions. Specific medical
evidence obtained for the purposes of litigation will
likely be even more important than previously,
whether this is from a respiratory consultant, mental
health professional, cardiovascular expert or otherwise. Where previously a decision may have been
made based on GP notes, these notes are unlikely to
be sufficient to draw a sensible conclusion when it
comes to cases of long COVID.
The Trade Union Congress (TUC) recently conducted a study relating to workers' experiences of long
COVID. The TUC found that the symptoms of those
suffering the effects of long COVID were varied and
each individual surveyed experienced these symptoms to greater or lesser extents. Fatigue, brain fog,
shortness of breath, difficulty concentrating, memory
problems, pain-related symptoms and depression
were the most commonly experienced symptoms.
The employer should come to a decision as to whether
an employee is disabled under the Equality Act by
considering the evidence. An employer may consider
that there is a high likelihood that the employee's
condition amounts to a disability and look to meet its
duties to the employee. In doing so, it does not need
to formally concede the position on disability, it can
simply agree to work with the employee to alleviate
the impact and, if appropriate, help get the employee
back to work. This could involve looking at workplace
provisions, criteria and practices (PCPs), such as working hours, workload, physical tasks and travel requirements, and making adjustments to these.
Could long COVID amount to a disability?
The TUC has argued that long COVID should be
deemed a disability. However, as discussed above, the
effects of long COVID can be different for different
people. Each case will need to be considered on its
own merits as to whether their condition qualifies as a
The Equality Act 2010 defines a disability as a
physical or mental impairment that has a "substantial"
and "long-term" adverse effect on a person's ability to
do normal daily activities. Employment tribunals do
not focus so much on the medical label given to a
condition, but will look at the effect of the impairment.
Someone suffering from chronic fatigue will likely
be considered to be suffering from a physical impairment. Someone who struggles with concentrating will
likely be considered to be suffering from a mental
As to what adjustments must be made, this will depend
on what is reasonable, considering factors such as the
cost, the practicality of making the adjustment and its
effectiveness. There has been case law which has looked
at whether it is reasonable to extend full pay during
absences as an adjustment. On balance, the cases have
decided that employers will only rarely be required to
extend sick pay as a reasonable adjustment because it
does not usually assist the employee to work. However
if an employer provides permanent health insurance
benefits, the expectation that the employer does what
it can to ensure the employee can benefit from this may
"Substantial" means more than "minor or trivial"
and so has a low threshold. "Long-term" means it has
lasted or is likely to last 12 months or longer.
However, long COVID is a new condition and it is
unlikely any case coming before a tribunal now will be
on the basis that someone has had long COVID for
EXPERT WITNESS JOURNAL
O C TO B E R 2 0 2 1