Recent reports in the national press indicate that the Scottish Trades Union Congress (STUC) is lobbying ministers to designate the condition that has become known as long-COVID a disability for the purposes of employment law. The idea behind this is to afford employees who are impacted by this debilitating and not yet fully understood condition, additional protection from dismissal and other less favourable treatment at work. It would also oblige employers to consider making reasonable adjustments to any employee’s working environment or other working arrangements, if doing so would correct a disadvantage that arose as a consequence of the disability. It’s being suggested that workers who have long-COVID should be given additional time to recuperate and protected from dismissal.
While the motivation behind this suggestion seems admirable, the reality is that anyone seriously affected by a physical (or mental) impairment which has a substantial adverse effect on their ability to work or manage their daily lives, could already be protected by the existing Equality Act 2010. It is certainly the case that when the original Disability Discrimination Act was introduced in the mid-1990s, its definition of disability was very tightly defined, requiring any qualifying condition to be “clinically well recognised”. However, that was later removed allowing more claimants to argue successfully for protection under the legislation. Employment Tribunals today adopt a very pragmatic approach to interpreting what may or may not amount to a disability and even pre COVID, were no strangers to cases involving chronic post viral fatigue and diagnostically challenging stress and mental health conditions.
Certain conditions such as cancer, multiple sclerosis and HIV are amongst those which are automatically deemed as disabilities under the Equality Act. If it is being suggested that the same approach ought to be taken with long COVID that may be difficult to achieve on a practical level because of the difficulty in obtaining an unequivocal diagnosis. So making full use of the existing law seems the obvious and sensible approach. It is also important to understand that even if the law was changed in this way, it would not necessarily prevent the lawful termination of someone’s employment if they were incapable of performing their role longer term, adjustments could not address the lack of capacity adequately and no alternative work was available.
If you are struggling with the impact of a COVID infection longer term or are an employer facing the challenge of a team member in this situation, getting input from an occupational health professional early on is always to be encouraged. While the legal framework is undoubtedly important in understanding rights and obligations, what is most important is working together, in a well-informed way to find a solution and get back to work wherever possible. If the pandemic has taught us only one thing, it is that most work can be done in a multitude of ways and from almost any location. With that in mind, most employers will try their best to be flexible and supportive without the need for a change in the law which would prove difficult to manage in practice.
If you would like to speak to a member of our employment team about managing a health issue at work, COVID-related or otherwise, get in touch on 03330 430350