Long Covid may be a disability

Long covid disability occupational health news

Long Covid could be a disability

An Employment Tribunal has decided that Long Covid may be a disability, which highlights to employers how the Equality Act 2010 can be applied.

The case in question (Mrs H Matthews v Razors Edge Group Ltd) was held in November 2021 and, following further representations, has just been finalised and published.

The background to the case

The employee started working at a salon in August 2007 as a hair stylist. It is understood she had an uneventful working relationship until 2018, when issues arose relating to the claimant’s employment status, and then from 2020 when the Covid pandemic reached the UK.

In late March 2020 the employee contracted Covid. The symptoms increased in severity from mid-April 2020, which resulted in the employee being admitted to hospital on two occasions because of breathing difficulties. She was tested for Covid and returned a positive result.

Sadly, she continued to suffer from symptoms weeks after the diagnosis. She continued to be affected by chronic fatigue, poor blood circulation, low iron levels and asthma. She was referred to the care of a local Crisis team.

She was prescribed inhalers, other medicines connected with the condition, strong painkillers and antibiotics. A clear Covid-19 diagnosis was recorded in her medical notes in May 2020.

The impact of Long Covid on the employee 

Since then, the employee reported finding it difficult to lift shopping bags because her hands went numb, she could not do her own housework, she found it difficult to cook and standing for any length of time was difficult. The employee described how her mental health suffered following the initial diagnosis.

The employee’s GP had recorded the situation as having ‘an impact on her ability to undertake her activities at home and also specifically to continue in her work as a hairdresser.’

The GP confirmed that during June and July 2020, the claimant was advised to reduce her working hours for her initial 4 week return to work period, with the position to be reviewed thereafter.

The employee stated her GP had advised her to work only two days a week, whereas the employer indicated this was insufficient, however, they were prepared to accept three days per week.

An agreement could not be reached and the employee resigned. She then brought a claim for unfair dismissal, disability discrimination, sex discrimination, breach of contract, holiday pay, unpaid wages and other payments.

The legal position 

The Equality Act 2010 says that a disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Occupational Health practitioners can advise on whether a condition may be a disability or not, however, the final decision is always a legal one.

Interestingly, it is well established that there doesn’t need to be a formal diagnosis made, or a specific diagnosis of a chronic or acute condition, for an impairment to be recognised by the Courts as a disability.

Employment Tribunals are directed more towards adopting a “functional” approach, which involves identifying the effect of the impairment, not necessarily a clinical name or underlying cause.

The Employment Judge concluded that “On balance of probabilities, the claimant was suffering from a physical impairment which was substantial in nature when she was discussing her return to work with Mr Roberts in June 2020.”

Furthermore, the Judge said “I find that it would be reasonable to conclude that the physical symptoms could well last longer than 12 months. As a consequence, I am satisfied that these impairments could be considered long-term in nature.”

In summary, the judgement concluded “for these reasons, I find that the claimant was disabled at the material time in accordance with section 6(1) Equality Act 2010”.

Is Long Covid a disability? 

Many news items have been published in recent days saying, for example, “Long Covid IS a disability”.

However, the judgement is in a single specific case, based upon a unique set of facts, and does not set a binding precedent that other Tribunals must follow. It does not mean that other Tribunals are certain to reach a similar judgment for any other claims including Long Covid.

The most salient point is that Long Covid (and any health condition or impairment) is capable of being a disability, if it meets the definition as specified in the Equality Act 2010.

It is a very good example of how any condition that is capable of causing long-term adverse effects on normal day-to-day activities could be defined by the Courts as a disability.

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