The definition of an individual deemed to have a disability for the purposes of employment under the Equality Act 2010 and the Disability Discrimination Act 1995 Northern Ireland is:
"A physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities”.
Daily activities are everyday things, such as walking, dressing, going up and down stairs etc.
The Definition of long term is:
“At least 12 months or likely to last at least 12 months or the remainder of the person's life if less than 12 months”.
There are special rules about recurring or fluctuating conditions. If an individual meets the definition, they are deemed to have a disability for employment purposes.
In Burke v Turning Point Scotland (June 2022) and (April 2023) the Employment Tribunals ruled in a preliminary hearing that the claimant’s long COVID did, in this instance, amount to a disability under the Equality Act.
Remember, although long COVID isn’t an officially recognised disability, this does not mean that the Equality Act or the Disability Discrimination Act (Northern Ireland) does not cover those individuals with the condition.
If an employer knows or could reasonably have been expected to know an employee has a disability following a long COVID diagnosis, any reasonable adjustments must first be made before dismissing that individual. This is to remove any disadvantage suffered by the disabled employee in doing their job when compared to non-disabled people including, for example, different working arrangements or workplace adaptations.
The Employment Act 2010 is a baseline for good practice. As a line manager, you should consider any reasonable adjustments and weigh that against the benefits of retaining your staff member in work. Remember, most reasonable adjustments don’t cost much money to implement. Taking time to understand the strengths and limitations of your staff member living with long COVID through an ongoing professional relationship facilitates the retention and loyalty of experienced staff.
Until case law becomes more established, the RCN advises that you consider whether the definition of a disability applies to the individual and if so ensure that all necessary legal obligations are met.
In any event, the staff member with long COVID will be entitled to take sick leave, regardless of whether their symptoms should be treated as a disability, in the same way as they would in relation to any other condition that affects their ability to work. This includes the right to either statutory sick pay or, where applicable, enhanced contractual sick pay, provided the employee satisfies the eligibility criteria for paid leave (David Morris 2023).
Long COVID as an occupational disease
The RCN has been pressing for long COVID to be classed as an occupational disease to make it easier for health and social care workers to claim Industrial Injuries Disablement Benefit and therefore receive compensation.
Belgium, Denmark, France, Germany, and Spain have already formally recognised long COVID as an occupational disease.