Dealing with Long-Covid – a guide to employers - Part 4 of 5
Scenario 4: Employee becomes very ill from Long-Covid – when can their condition legally be treated as a ‘disability’?
Prior to the last 12 months Ben had an excellent attendance rate at work. However, during the pandemic he contracted coronavirus and has been seriously ill with Long-Covid since. Due to the length of his absence this has triggered the formal process under his employer's long-term sickness absence. Ben will therefore be invited to a formal meeting to discuss his absence.
What should the employer do?
When any employer is dealing with long term sickness absence the priority for the employer is to establish the facts and to take steps to ascertain the true medical position. This will usually involve obtaining a medical report from the employee's doctor and or an OH professional or medical specialist
As part of the medical assessment, one issue to be explored is: -
“What, if anything, can the employer reasonably do to facilitate a return to work?”
This might involve a range of “adjustments” to support the employees return e.g: -
- a change to the nature of the work itself
- a "phased return" where the employee returns to work on a limited basis - not working a full week - and then slowly returning to a normal working pattern over a period of weeks or months.
However, it may be clear, that the employee is simply unfit for work and will remain so until recovered. The key question for the employer to establish is: -
“How long that situation is likely to continue?”
Depending on the prognosis, it may become clear - or at least appear possible - that the employee's condition amounts to a disability. The employer will need to be particularly careful not to rush into any decision to dismiss and to pay particular attention to whether or not anything can be done to facilitate a return to work.
In some scenarios it may be mutually agreed that a return isn’t physically possible.
Following a fair procedure
In these scenarios a fair procedure is essential and open communication is key. Even if the employee is disabled the employer will not be obliged to hold the job open indefinitely.
There will come a point where it is reasonable to dismiss the employee on the grounds of capability. While that will amount to unfavourable treatment because of something arising in consequence of a disability, it will not be discrimination if it is a proportionate means of achieving a legitimate aim. When that point is reached depends on the nature of the work and impact of the employee's absence on the business.
A decision to dismiss should not be taken until the employee has been informed that the employer is considering that option and has been given a fair opportunity to make representations and update the employer on a likely date on which they could return to work.
Long-Covid as a disability
The Equality Act 2020 defines a disability as: -
“a physical or mental impairment which has a substantial and long-term effect on an individual's ability to carry out normal day to day activities”.
In the case of Long-Covid the key requirement is obviously that the effect must be "long term". This means that it must last for a year or be likely to last for a year (or for the rest of the individuals' life if that is a shorter period). Once an employee has had Long-Covid for more than a year, therefore, it is likely that they will be classed as having a disability provided the symptoms are sufficiently serious to have a substantial effect on their life.
However, the more difficult question is - whether or not someone who has had Long-Covid for less than a year would be regarded as disabled?
On what grounds can discrimination be founded?
It is important to bear in mind that the date that counts is the date of the alleged discrimination. So, if an employee is dismissed after having Long-Covid for six months, the question will be whether at the time of the dismissal the condition was likely to last for at least six months more?
The question of how long the effect of the impairment was "expected" to last is important and will be considered by any tribunal - it has to be answered on the basis of the facts known at the time of the alleged discrimination and without the use of hindsight.
This means that it is perfectly possible that a tribunal could rule that the condition was not expected to last for 12 months, even though as events transpired it actually did. On the other hand, the tribunal could rule that the condition was not expected to last for 12 months even though the employee made a full recovery soon after dismissal. It all depends on what the medical evidence was at the time of the alleged discrimination.
As medical knowledge about Long-Covid and the prognosis of those who suffer from it increases, a clear picture may emerge as to whether it tends to have an effect that exceeds 12 months. This may make it easier to determine the prognosis of a particular individual. Until that time the question will have to depend on the best evidence available as to the employee's medical condition at the time of any alleged discrimination.
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