How should employers deal with long Covid? A recent tribunal case has some indications for what they should consider, says Kate Palmer from HR experts Peninsula.
An employment tribunal recently ruled that long Covid is a disability under the Equality Act 2010. In the case, a caretaker caught Covid-19 in November 2020 and his employers, Turning Point Scotland, dismissed him eight and a half months later. While the result isn’t binding on other tribunals, it might open the floodgates for more successful discrimination claims being brought forward in the future.
The Equality Act 2010 defines a disability as something that has a ‘substantial’ and ‘long-term’ negative effect on someone’s ability to perform regular daily activities for 12 months or more. Office for National Statistics data shows that 1.3 million people reported suffering from long Covid between December 2021 and January 2020. The total number of long Covid cases has risen to around two million so employers need to be mindful how to properly manage employees who are suffering from long Covid in order to avoid discrimination claims.
Even if an employee’s symptoms last over 12 months, it might not be classed as a disability unless the symptoms are having an impact on their ability to perform daily tasks like driving, shopping and getting dressed over an extended period. To an employer, this might mean commuting to work, sending emails to colleagues, attending meetings or sticking to a schedule.
The effects of long Covid tend to vary from day to day, meaning someone might feel fit for work one day, but need more time off the day after, following a ‘boom and bust’ cycle of recovery, followed by a relapse. This makes it hard to plan a return to work, even with a phased return, which could help them make a gradual recovery. The National Institute for Health and Care Research (NIHR) is currently funding a portfolio of research that looks at how to manage long Covid and what people can do to support their recovery.
While the symptoms of long Covid will be unique to each person, many are shared, so making connections with other employees who are going through the same thing can really help. Investing in a peer mentorship programme can help create an inclusive working atmosphere, so people can meet and talk about shared experiences and ways to deal with them.
Employers should share out the workload and make sure someone can pick things up on short notice in the event of the employee’s absence, while bearing in mind the impact this could have on others and their productivity. Because people suffering from long Covid are more likely to take shorter, more frequent and unplanned absences, consider adjusting your absence policies.
Most absence policies have trigger points to help manage and keep track of absences and guide employers on how to respond to different types of absence and decide whether disciplinary action is needed. Employers may want to remove Covid-19 or related illnesses as trigger points in the sickness policy. UNISON has said that taking disciplinary or capability action against an employee with long Covid is unfair and may result in discrimination claims. To avoid potentially discriminating against an employee with long Covid, you may consider extending the trigger points or allowing for a greater level of absence due to disability before taking any action.
You can also ask an occupational health advisor to conduct an assessment, with the employee’s consent, to get an indication as to how bad their symptoms are, how long they might last and what reasonable adjustments you can make to help them. This should include the option of flexible working, reduced hours or responsibilities, more rest breaks, a phased return to work or paid leave for medical appointments. In smaller companies, there might not be an occupational health advisor on hand so you will have to go off the advice of both the employee and their doctor.
No two employees are the same so adjustments that work for one person won’t necessarily work for another. You would need to tailor any adjustments to the individual. For example, if a job is quite physically demanding, you may consider temporarily changing their duties to a more office-based or home-based role if they suffer from breathlessness. If they suffer from particularly bad cognitive symptoms such as brain fog or memory loss, give them less mentally challenging tasks. Changing performance targets to ensure they have more time to complete tasks is also something you should
It’s understandable that some staff will feel anxious about returning to work after being absent for so long and will need additional support. Regular wellbeing conversations can go a long way to putting their mind at ease and dealing with any concerns as they arise. If the disadvantages of keeping an employee in the same role outweigh those gained by making adjustments, it may be a good idea to redeploy them in another role. While this can be a long and complicated process, and you will have to keep in constant contact, it’s a better alternative to dismissal.
Even if you have done all this, you may reach the point where you must dismiss someone on capability grounds. Firstly, make sure you’ve discussed all other options, such as redeployment, and have conducted a full medical capability procedure or you risk a claim of unfair dismissal before an employment tribunal. You must attain medical evidence from their doctor and explore all other options before taking any action to dismiss.
Long Covid has been linked to around 200 symptoms, and affects everyone who has it differently. Symptoms can last for months or years. At this point, no one can fully agree on how to define, diagnose and treat this complex condition. We know that women, ethnic minorities and those with pre-existing conditions are more at risk, but there is no concrete plan in place to manage the huge influx of cases we’re seeing.
Employers are in uncharted territory when managing long Covid, but cases such as Burke v Turning Point Scotland may help shed some light on how to manage it.
*Kate Palmer is Associate Director of Advisory at Peninsula which provides HR and health & safety support for small businesses.