With coronavirus having resided in the UK population for more than a year now, business owners will no doubt already be familiar with ‘long COVID’ – a more extreme and debilitating iteration of the virus, with the potential to leave patients unwell for several months or even years.

A BBC article published towards the end of last year gave a broad overview of the condition. It cited crippling fatigue as the most common symptom, with other manifestations including a cough that won’t go away, joint pain, hearing and eyesight problems, and damage to the heart, lungs, kidneys and gut. 

As is the case with all medical conditions, this should be a serious consideration for HR, especially as other conditions such as chronic fatigue syndrome and fibromyalgia – which are comparable in terms of their symptoms – have in the past been held to constitute a disability in the eyes of the employer.

Under Section 6 of the Equality Act 2010, there are four stages that need to be met for a condition to amount to a disability. 

1. Does the employee suffer with a recognised physical or mental medical impairment? That is a question of fact but normally fairly easy for the employee to establish.
2. Has that impairment lasted more than 12 months or is it likely to do so? Again this is a question of fact where medical evidence will be important. Conditions that come and go, like chronic fatigue syndrome, would potentially count.
3. Does the impairment affect someone’s ability to carry out normal day-to-day activities? Note the reference to ‘day-to-day activities’, so the ability to carry out someone’s job is not a relevant consideration. Government guidance on matters to be taken into account in determining questions relating to the definition of disability, though almost 10 years old, gives a range of examples of how an impairment might impact someone’s normal day-to-day activities.
4. Is the impairment substantial? This is key. Hundreds if not thousands of medical conditions may impact someone’s ability to carry out normal day-to-day activities, but is that impact substantial? This is a relatively low bar as the effect only has to be more than minor or trivial. The government guidance contains more info and examples.

On this basis, while each case will be fact-specific, it is likely that the long COVID will be treated similarly to the long-term illnesses mentioned above, especially as many medical practitioners are recognising long COVID as a legitimate condition. 

James Tamm, Director of Legal Services at Ellis Whittam, explains: “In reality, this test isn’t a difficult hurdle for employees to overcome. Practically, you tend not to get into this sort of detailed analysis and would instead defer to an OH or GP report and they are usually pretty generous towards employees – as are Tribunals in this regard. They are normally pretty willing to find that a genuine substantial condition is a disability rather than let the employer off on a technicality. 

“Instead the ET would be much more focused on the treatment the employee has been subjected to and if that is adverse compared to non-disabled employees, the reasons why that treatment has been handed out.”

In any event, employers must be sensitive towards this issue, remain alert to any changes in the employee’s behaviour or performance that warrant intervention, and approach any such concerns carefully. In order to ensure that employees remain open and transparent about long COVID, managers should be encouraged to communicate to individuals that the company has their best interests at heart and intends to support them wherever possible.