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Long COVID, is it a Disability? – Update

June 27, 2022

Earlier this year we explored whether or not Long COVID might qualify as a ‘disability’ for the purposes of the Discrimination (Disability) (Jersey) Regulations 2018 (the Regulations). You can read that article here.

Recent case law in the UK has developed the position. In Burke v Turning Point Scotland, a Scottish Employment Tribunal found that an employee with Long COVID symptoms was disabled for the purposes of the Equality Act 2010 (the Act) in the UK. Mr Burke has become the first person in the UK to successfully claim that Long COVID is a disability.

What is Long COVID?

The National Institute for Health and Care Excellence (NICE) has defined Long COVID as: “signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, which can overlap and fluctuate over time and can affect any system in the body.”

Symptoms include, but are not restricted to: a cough, breathlessness, fever, palpitations, fatigue, cognitive impairment and joint pain. Although the majority of people infected with Covid-19 recover within a 12-week timeframe, it is estimated that more than one million people in the UK are suffering with prolonged side effects.

Definition of Disability

Under section 6 of the Act a person has a disability if they have a ‘physical or mental impairment’ which has a ‘substantial’ and ‘long-term adverse effect’ on their ability to carry out normal day-to day-activities. The effect is “long-term” if it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the individual’s life.

The definition of “disability” is broader in Jersey. Someone is deemed to have a “disability” under the Regulations if they have one or more ‘long-term physical, mental, intellectual or sensory impairments’ which can adversely affect their ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the Regulations. A long-term impairment is defined as one which has lasted, or is expected to last, for not less than 6 months or is expected to last for the rest of that individual’s life.

Long-COVID in Jersey

There is currently no definitive answer to whether Long COVID would satisfy the statutory definition as set out in the Regulations. However, it is highly likely that Long COVID, in certain circumstances, is capable of meeting the statutory definition of ‘disability’. Establishing Long COVID remains a grey area, as medical experts remain unsure as to the average length of symptoms of long COVID and their fluctuating nature. Any decision will be based on the individual circumstances of the case and will depend on the severity of symptoms.

Satisfying the ‘adverse’ and ‘long term’ requirements set out in the Regulations will be a relatively difficult exercise for employees to prove. In the case of Burke, Mr Burke was able to establish that he could not walk to the nearby shop, needed help with cooking, and shopping, had difficulty concentrating and also had disturbed sleep. The symptoms were considered sufficiently substantial (even though their severity varied day-to-day) and long-term (as they were capable of lasting 12 months), to meet the test. The decision in Burke is not binding. Not every Long COVID sufferer will meet the definition of disability. It may however, be relied upon in Jersey to strength the case of those employees who are living with long COVID or currently signed off on long-term sickness absence.

Long COVID in the Workplace

If an employee is able to claim that Long COVID amounts to a disability under the Regulations, employers who do not handle these cases correctly leave themselves open to potential claims of discrimination and unfair dismissal. There are a number of steps that employers can take to protect themselves:

  • Ensuring the Staff Handbook is up-to-date to allow management of long periods of sickness absence efficiently and in a considered manner.
  • COVID continues to circulate. Robust Covid-19 health and safety practices to prevent transmission of the virus at work remain important.
  • Employers should be cautious when dealing with employees suffering with Long COVID. Reasonable adjustments to facilitate an employee’s continued employment should be considered. These adjustments may include a phased return to work, adjustments to duties or discussing what they want to tell others at work about their illness.
  • Good practice would be for employers to make reasonable adjustments to protect themselves against potential disability discrimination claims, and to support employees through any uncertainty with the impact of long COVID.

On the face of it, it does appear that many employees suffering from long COVID will satisfy the definition of disability as set out in the Regulations and it may not be long before a case is brought before of the Jersey Employment Tribunal.

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