Equalities and Human Rights Commission publishes statement on Long Covid

Under the Equality Act, anyone with a physical or mental impairment that has lasted for longer than 12 months and substantially impacted their ability to carry out normal day-to-day activities qualifies as disabled and is entitled to protection to ensure that they aren’t discriminated against in the workplace. However, uncertainty remains around the symptoms of ‘long Covid’ and whether they would constitute a disability under the Equality Act.

On 9 May, the EHRC stated that, “We cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act. This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination."

“We would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on individual cases.”

The statement prompted concern from long Covid support groups and unions that this statement may give licence to employers to not provide those reasonable adjustments to those suffering from long Covid.

Dr Jenny Ceolta-Smith, an employment advocate for Long Covid Support and co-founder of Occupational Therapy for Long Covid, said: “There is already disbelief of workers’ long Covid symptoms within the workplace, and this may make it much harder for workers to gain the support that they need.”

According to the Office for National Statistics, an estimated 1.7 million people in the UK (2.7% of the population) were experiencing long Covid symptoms lasting longer than four weeks as of 5 March 2022. Of these, 784,000 said they’d been affected for longer than a year, and 74,000 had been experiencing symptoms for at least two years.

Catherine Hale, founder and director of Chronic Illness Inclusion, said being able to access reasonable adjustments was critical to people staying in work.

Alice Arkwright, policy and campaigns support officer for the Trades Union Congress, said asking someone suffering from Covid-associated fatigue to take their employer to a tribunal if they felt they’d been discriminated against was unreasonable. “The TUC is asking for the government to automatically treat long Covid as a disability so that people wouldn’t have to go through this process,” she said.

While the comments may be frustrating to sufferers of long Covid as it leaves the decision-making process regarding whether they are disabled ambiguous, they do highlight that long Covid can be a disability for the purposes of bringing a claim. Employers should therefore still assess those with long Covid in the same way they do any employee with ongoing health concerns, including seeking medical advice to ascertain the correct and up to date medical position, and considering reasonable adjustments if necessary and possible.