The National Institute for Health and Care Excellence (NICE) defines long Covid as lasting for more than 12 weeks. Reported symptoms include:
- respiratory issues
- problems with the heart and gut
- ‘pins and needles’
- a condition described as ‘brain fog’
Many people describe feeling completely debilitated and are unable to work.
COVID and the Equality Act 2010
Long-term illness can qualify for protection as a disability under the Equality Act 2010. To dismiss someone for having a disability could potentially be deemed unfair.
Under the Act, you are considered ‘disabled’ if you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to carry out normal daily activities.
‘Substantial’ means more than minor or trivial, and ‘long-term’ means 12 months or more.
Is long Covid a disability under the Equality Act?
The law relating to Covid is still evolving. As a result, there is no definitive answer yet. However, the condition might qualify as a disability in the case of someone struggling with breathing difficulties, walking, chronic fatigue, or brain fog for more than 12 months.
Whether long Covid does amount to a disability will vary from case to case. It will depend on the severity of symptoms and how long they last. This is likely to remain a grey area for some time.
Employer’s responsibilities in respect of a physical impairment
If an employee’s long Covid symptoms amount to a disability, then dismissal for it may be unfair.
The employer will also have a duty to make reasonable adjustments to the workplace. This could involve making changes to the working hours, place of work, or work facilities.
They should also take reasonable steps to ensure there is no indirect discrimination by way of any existing policies or practices that could put the employee at a substantial disadvantage, compared to those who are not disabled.
Dismissal for long-term sickness
You can be dismissed if you have a persistent or long-term illness which makes it impossible for you to do your job. Before an employee is dismissed it is essential to follow a fair procedure. This should include the following:
Once the employee has been off work for more than seven days, they need to provide a fit note. The employer and employee should then agree how regularly the employee maintains contact.
The employer should ensure they understand the nature of the illness and its implications.
After a month, if the employee is still unlikely to be able to return in the immediate future, they should be invited to an absence review meeting. The meeting should explore whether any adjustments can be made to enable the employee to return to work.
In many cases, there may be several absence review meetings. It may help for the employee to provide further medical information from their GP, specialist, or occupational health adviser. This could be used to decide whether reasonable adjustments could be made.
Once the above has been exhausted, the employer can invoke their dismissal procedure. This should be a fair and transparent procedure as set out in the employer handbook or policies.
The procedure will nearly always involve inviting the employee to a meeting to discuss the possibility that they may be dismissed for ill health. All options should be explored, such as whether there are any alternative roles the employee could be offered.
The employee should be given an opportunity to fully state and explain their case. Other considerations may include:
- how long the employee has been off sick and is likely to remain unwell
- how long they have been employed
- the impact of their absence on the business.
As always, the employee should be given a right of appeal against the decision to dismiss.
Seeking professional legal advice related to long COVID absences from work
Long Covid is a relatively new condition. It is also a new area when it comes to the law and dismissal. Each individual case should be considered on the specific circumstances.
At Springhouse Solicitors, our experienced team of employment law experts can advise you on a variety of matters related to Covid and long-term sickness – whether you are an employee concerned about your employment rights while off sick, or an employer considering dismissing an employee due to long term sickness absence.
For an initial conversation about your circumstances, get in touch today.