At the weekend (9 May 2022), the Equalities and Human Rights Commission (EHRC), the equalities watchdog, tweeted that “without case law or scientific consensus, EHRC does not recommend that “long Covid” be treated as a disability.”  Following something of an outcry in the media and on Twitter, the EHRC has now amended its position saying that although long Covid is not a condition listed under the Equality Act 2010, long Covid might amount to a disability, for a particular individual and that employers should continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.

In order for a person to be disabled under the Equality Act 2010, they must have a physical or mental impairment that has a substantial and long term adverse effect on their ability to do normal daily activities. The effect of an impairment is long-term if—(a)it has lasted for at least 12 months,  (b)it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected.

There is no statutory definition of impairment, and the courts normally take a common sense approach to this. In other words, anything that affects you can qualify as an impairment.

Last year, the TUC were calling for long covid to be recognised as a disability, based on a survey of 3500 workers, 29% of whom said that they had experienced symptoms, after being infected with Covid 19, lasting longer than one year.  So could long Covid be classed as a disability?   Currently there is no statutory definition  of long covid and there are many different symptoms which can affect people.   The NHS website lists various symptoms that people can experience after a Covid 19 infection, including extreme tiredness, shortness of breath, chest pain, joint pain, depression and anxiety, loss of sense of taste and/or smell.  Clearly some of these symptoms could be very debilitating if their effect was long term and substantial.  However, whilst the medical evidence surrounding long covid is still in its infancy, any employee alleging that they are disabled because of long covid, would still have to show that they meet the definition in the Equality Act.

According to data from the Office for National Statistics, by the end of January this year, about 2.4% of the UK population said that they were experiencing ongoing symptoms of Covid, with 45% reporting that the infection was a year or more than a year ago.  If someone is experiencing these symptoms, and can show that the adverse impact could be held to be substantial and long term, then they could be disabled.  Every case is judged on its own facts and ultimately it would be for a Tribunal to decide, but if an employee is still experiencing symptoms that last months after first being infected, employers should be alive to those symptoms and support those affected, in order to avoid the risk of possible discrimination claims.

If you have any questions, contact a member of our Employment Law team.