Long-COVID: How the Virus continues to Exhaust our Workforce

COVID has slowly faded to the back of a lot of our minds, with lockdown being a distant memory and masks no longer mandated, many of us may even be able to pass a whole day without thinking about the virus. For many others however, the scourge of COVID lingers and continues to interrupt everyday life so much so that working is a struggle…

Long COVID is defined by the National Institute for Health and Care Excellence as ‘signs and symptoms that develop during or following an infection consistent with COVID-19 which continues for more than 12 weeks and are not explained by an alternative diagnosis.’ According to ONS, as of April 2022 an estimated 1.8 million people in the UK were experiencing long-COVID.?The symptoms can last for any given amount of time and may sporadically come and go with some days worse than others. 51% of sufferers reported experiencing fatigue, making it the most common symptom, followed by shortness of breath, loss of smell and difficulty concentrating.?

It's easy to imagine that feeling exhausted as well as potentially struggling with breathing and concentrating would affect your ability to perform at work. 67% of people who have reported symptoms of Long-COVID have said that it is adversely affecting their day-today activities. Not only that, but 1 in 10 sufferers had to stop working and take sick leave, with their average working hours reduced by 2.5 hours a week. This affect the employee’s earning potential and may have a negative knock-on effect for their employers’ out-put.

Reduced productivity is only one of the challenges that employers may face because of long COVID. Women, ethnic minorities and those aged 35-49 are more likely to be affected, therefore it is important that employers are mindful of treating people fairly as failure to do so may lead to claims of indirect age, sex or race discrimination.

In the last couple of months some cases alleging unfair dismissal in relation to long COVID have made it to Tribunal. In a case heard in Glasgow, the claimant was dismissed two weeks after having contracted COVID. During this time she suffered symptoms of Long-Covid but was not formally diagnosed with the condition until after she was dismissed, but she still brought a claim of direct disability discrimination. There are two factors that need to be satisfied to be able to deem someone disabled in accordance with the Equality Act (2010), these are that

1. the person has a physical or mental impairment; and

2. that impairment has a substantial and long-term adverse effect on ability to carry out normal day to day activities

The first limb was easy to satisfy with doctor’s notes that reported her unfit for work; the second limb was the deciding factor. The Tribunal ruled that the effect of COVID could not be considered long lasting as it had not lasted 12 months and was not likely to either. The reasoning was largely to do with the ‘relevant time’, which was at the point of dismissal. The tribunal decided that at the time of her dismissal the illness had not been diagnosed and it was not foreseeable that it would be long lasting as most people recover from the condition in under 12 months. ??

However, in June a Tribunal decided that long-covid symptoms did qualify as a disability under the Equality Act. In this instance the claimant had been suffering from long-covid for 9 months before he was dismissed due to his ill health. The tribunal decided that it was not likely that the claimant was exaggerating his condition as he had no incentive to do so having exhausted his sick pay entitlement, and as the condition had been affecting his health for so long already it was likely to continue for at least 12 months.

Comparing these two cases, the main issue that a Tribunal will focus on is length of time affected and how that related to the dismissal. It should be noted that neither of these cases are binding, but lessons should be learned by employers.

So if you have an employee who is affected by Long-COVID, what should be done? ACAS currently recommends that employers focus on reasonable adjustments they can make rather than worrying about whether their employee’s condition is classed as a disability. The adjustments they suggest include:

• Getting an occupational health assessment
• ?Making changes to the workplace or how the employee works, such as adjusting their contracted hours
• A phased return to work

The main overriding message from their advice is to create good lines of communication with the employee about how they can best be supported. Being away from work for extended periods of time may lead to feelings of isolation, so ACAS recommend:

• Agreeing how and when to make contact during any absences
• Making sure their work is well covered and shared out appropriately
• Talk about how best to support their return when they’re ready

If you have an employee who is suffering with Long-Covid and are unsure how to manage the issue, do reach out to us here at mpm Legal for advice – Contact Us mpm Legal Solutions