Most employers are well aware that they are statutarily required to make reasonable adjustments for employees and clients who have a disability. Indeed, most employers are aware that a majority of disabilities are hidden – so this isn’t just about folk who are wheelchair users it is also about people who have, for example, hearing deficits, breathing difficulties or who are autistic.
Current research shows that some 60,000 people in the UK continue to suffer the effects of Covid 19 for some time after the height of their illness. This has become known as Long Covid. The median age for those affected by Long Covid is 45, so effectively people of working age. People suffering Long Covid report that it can be cyclical with periods when they are well followed by periods of extreme fatigue, muscle aches affecting their mobility and breathlessness.
It is likely that employees suffering Long Covid will have repeated sickness absences and may quickly hit the trigger points in your Sickness Absence Policy.
The question then arises as to whether Long Covid could be classed as a disability as defined by the Equality Act 2010.
The legal definition of a disability is a “physical or mental impairment” that has a “substantial” and “long term” negative effect on the ability to do normal daily activities – and attending work is considered to be a ‘normal daily activity’. Tucked away in the Schedules to the Equality Act is a definition of ‘long term’, that is something that has lasted a year or is likely to last a year or more.
Of course, no one can know at the moment whether Long Covid is likely to last a year or more. The medical profession are undertaking the formal process to recognise Long Covid as a medical condition but that does not necessarily equate to it being a disability under the meaning of the Equality Act.
Employers should take great care when implementing their Sickness Absence Policy when an employee hit the trigger points because they are suffering from Long Covid as it seems quite possible that an employee could have a disability as set out in the Equality Act. Please consider part time working, working from home or any other adjustments that could support a Long Covid sufferer. And always keep an audit trail of any adjustments you have implemented. If dismissal becomes appropriate/necessary your audit trail will become of the utmost importance. No one wants to end up defending a disability discrimination claim with its unlimited compensation for a successful claimant.
Finally, if you are unfortunate enough to have to implement redundancies and use attendance records as a selection criterion then ensure you do not count any disability related absences when totting up sickness absences for comparison with other employees. You should only use absences that are not disability related as to do otherwise would disadvantage anyone with a disability.
As always, help is available on 07766 167160 or through www.bdroper-hr.co.uk.