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12th July 2021

Long COVID - a 'legal' disability?

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The TUC recently called for Long Covid to be recognised as a disability for the purposes of the Equality Act 2010 (“2010 Act”), a survey showing that employees and others who were suffering from its symptoms were regularly experiencing workplace discrimination.*

What, however, does this mean, and is recognition needed?

Under the 2010 Act, those who satisfy the legal definition of “disability” have various types of protection to prevent them being discriminated against by their employer because of their disability.

The definition of a disability under the 2010 Act is where an individual has a “physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities".

This is very wide-ranging and captures an enormous range of physical and mental illnesses and injuries, whether arising from disease or trauma.

It used to be the case that the physical or mental impairment had to be “clinically well-recognised”. However, the problem there was it could mean that new or little understood illnesses were not covered by the discrimination legislation, despite many individuals clearly suffering and their lives impacted considerably.

With the removal of the requirement that the impairment had to be clinically well-recognised, even if, say, an illness is not fully understood or is new (such as Long Covid), individuals such as employees are still able to gain the protection the 2010 Act provides.

There are some diseases and conditions though which are automatically deemed to satisfy the definition of disability due to their nature; cancer, HIV infection and MS are the most common examples. This list of deemed disabilities however is very small.

This means that, where an employee has been diagnosed for example with cancer and feels that they have been treated less favourably because of this by their employer, they are able to bring a claim in an employment tribunal for discrimination without having the added hurdle of proving that their disease falls within the definition of disability under the 2010 Act.

It would certainly make life much easier for those who have Long Covid if this was added to the list of deemed disabilities as the TUC appears to recommend, as those employees with undisputed disabilities for the purposes of the 2010 Act tend as a matter of practice to be treated with an extra layer of caution and respect by HR. Where, however, they are not treated that way, again it would make it easier for such employees to bring a case against their employer in an employment tribunal for redress.

Is there a need though, as the TUC appears to suggest, to add Long Covid to the list of illnesses such as cancer which are deemed automatically to be a disability?

Those with Long Covid have complained of a variety of symptoms such as:

  • cognitive issues (memory and concentration- sometimes referred to as brain fog)
  • shortness of breath
  • insomnia
  • heart palpitations
  • chest pain
  • pins and needles
  • headaches
  • dizziness
  • fatigue
  • joint pain
  • depression and anxiety
  • tinnitus
  • rashes
  • sickness

What a very unpleasant list. If an employee is suffering substantially (meaning their suffering is more than minor or trivial) with some or more of these symptoms, it may be quite straightforward to fall within the definition of disability in terms of them having a “physical or mental impairment, and the impairment has a substantial [X] adverse effect on their ability to carry out normal day-to-day activities”.

The key issue at the moment, however, is the missing words where the “X” above marks the spot. That is, the impairment must be long term.

To get protection against discrimination under the 2010 Act, the impairment will have a long-term effect only if:-

  • it has lasted at least 12 months;
  • the period for which it lasts is likely to be 12 months; or
  • it is likely to last for the rest of the life of the person affected.

Covid-19 is a very recent disease. Long Covid is even more recent. The issue an employee is therefore faced with is convincing an employer or tribunal that their substantial impairments – their symptoms - are long term.

Whilst the very name of the illness screams that it must surely be long term, nevertheless it still must fall within the legal definition of what is long term. 

Given the very recent nature of Long Covid, employees are perhaps unlikely to be able to show it has already lasted for at least 12 months at the relevant time. Instead, employees are going to need to demonstrate that their illness is likely to last for 12 months, and that their symptoms will be more than minor or trivial for at least a year.

As it is such a recent illness, and symptoms appear to vary from person to person, how will an employee prove this? At the moment, with difficulty.

Because of this issue, anyone now suffering from the types of symptoms listed above and believe them to be as a result of Long Covid will face an uphill battle to convince an employment tribunal that their illness is going to be, legally, long term. 

As time goes on, and more is known about Long Covid, that battle may become an easier one to win. That, however, is not much comfort to those already suffering from this illness.

The way around that issue is to add Long Covid to the small list of illnesses that are deemed to be disabilities under the 2010 Act. However, if that does happen, should not other illnesses where it can sometimes be challenging for an individual to show they fall within the 2010 Act’s definition, such as those with depression, be classed as deemed disabilities?

The issue however is that for many types of illnesses the severity of the symptoms and duration of those symptoms for those illness vary considerably – as may well be the case for Long Covid. 

Due to the current uncertainty surrounding the likely duration of symptoms and their severity over the longer term, it is doubtful in my view that Long Covid will join the small list including cancer and MS to become a deemed disability. That said, I predicted in March last year to my colleagues that the pandemic would be under control and all back to normal by the end of May 2020, so my past record of predictions surrounding Covid -19 is somewhat checkered.

If it did, however, it would provide certainty for employers and tribunals, but millions of other employees who suffer from other illness such as depression would have quite some justification for calling for their illness to join that list.

We shall see!

 

* Source: https://www.tuc.org.uk/news/tuc-calls-long-covid-be-urgently-recognised-disability-prevent-massive-discrimination