June 7, 2022
By Fflur Jones
Below we discuss the potential repercussions of the EHRC’s comments.
Background – the law on disability at work
Where a worker has suffered a physical or mental condition for 12 months or more (or where that condition is likely to last for 12 months or more), that worker will be considered disabled under the Equality Act 2010 (‘EA’) if that condition substantially impacts their day-to-day life. This will mean that their employer has a legal duty to make reasonable adjustments to help them at work. What is reasonable will depend on a number of factors including the nature of the work and the worker’s particular disability, but might include allowing the worker to work remotely or flexibly, for example.
If an employer fails in their duty to make reasonable adjustments for a disabled worker, they may be found guilty of disability discrimination at the Employment Tribunal and could end up paying compensation to the worker.
What the EHRC have said
On 8 May, the ECHR tweeted that it did “not recommend that ‘long covid’ be treated as a disability”. The tweet has been widely criticised. Some fear that it will undermine the rights of those genuinely suffering from long covid. Others fear that it will lull employers into a false sense of security that they can ignore their duties towards those suffering from long covid; something that could later expose them to the risk of disability discrimination claims.
Our advice to employers
Always treat long covid seriously and consider what adjustments can be made to help the worker suffering from the condition.
Think outside the box when it comes to possible adjustments and ask the worker what adjustments they’d like to see made. You don’t necessarily have to make all those adjustments (because legally you only need to make adjustments that are reasonable) but it’s still useful to ask the question.
If the long covid becomes a longer-term issue, consider asking for expert medical advice on the worker’s condition, what adjustments they think can be made, and what the long-term prognosis is.
If the long-term prognosis for recovery is not good and the worker is absent from work for a lengthy period, consider whether the long covid has become a capability issue, i.e. that the worker is incapable of carrying on in their role.
Dismissal on the grounds of capability should be a last resort when no reasonable alternatives exist.
If you are an employer or an employee and need advice on long covid or disability discrimination, please get in touch with our Employment and HR team on 02920 829 100 for a free, no-obligation chat to see how they can help.
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