The key headlines from this case are as follows:
- the claimant in this case suffered from long Covid and
- this illness was a disability.
For those of you who follow our blogs and updates (please do subscribe if you haven't already) you will know that this issue has been on our radar for some time. Can long Covid meet the definition of disability under the Equality Act 2010 and so give sufferers the protection from discrimination? This is the first case where an employment tribunal has ruled that indeed there will be circumstances where this definition will be met. A welcome relief to sufferers considering the Equality and Human Rights Commission (EHRC) recommendation that it is not treated as such. Read our recent blog.
So, what are our take-away points from this?
- Not all long Covid cases will be a disability – each case will need to be decided on its own facts and merits. This decision is a first instance tribunal decision so whilst it is important to demonstrate that a tribunal will conclude on certain facts that long Covid is a disability, all further court and tribunal decisions are not bound by this decision. To reiterate what we have blogged about previously, given the diverse nature of long Covid, employers will need to take each case and address the particulars of that sufferer’s symptoms and experience.
- Employers may need to be flexible with medical evidence – interestingly the tribunal noted that given the difficulties in obtaining a GP appointment since the start of the pandemic in 2020, employers may need to rely on less medical evidence than they would do under other circumstances. This comes hot on the heels of news that sick notes may be signed from 1 July 2022 by medical professionals other than GPs (read our blog here). Whilst employers must still seek to obtain necessary medical evidence in accordance with their sickness policies, there may need to be some flexibility within certain boundaries. This could involve consideration of any medical advice and evidence sought from other medical professionals, not just GPs. The tribunal accepted in this case that there was less medical evidence than usually expected due to the difficulty of having a face-to-face consultation with a GP.
- This is a key ongoing issue - recent figures from the Office for National Statistics (ONS) demonstrate that there is still a sizeable number of people suffering from long Covid. As of 1 May 2022, two million people in the UK were reporting long Covid symptoms. Of those, 71% reported that their symptoms affect their day-to-day activities and 20% reporting that their day-to-day activities had been 'limited a lot'.
We would expect to see more of these cases going forward so would reiterate our advice:
- Treat each case individually taking account of symptoms and their effects
- Follow your sickness absence policies for clarity and transparency
- Be prepared to look for reasonable adjustments even if it is inconclusive whether the long Covid is a disability
Listen again to our podcast for further advice.
The Judgment of the Employment Tribunal is that the claimant was a disabled person within the meaning of s6 of the Equality Act 2010 in the period between 25 November 2020 and 13 August 2021.