Long Covid: Know Your Employment Rights 03 November 2021 A lot of people living with Long Covid have been asking about the impact on their rights at work. As part of our partnership with Thompsons Solicitors, we’ve invited Employment Law expert Claire McDairmant to write a guest blog covering the main things you need to know about your rights if you’re living with Long Covid. Long Covid Sickness Absence People living with Long Covid may have periods of absence from work due to ill health. The usual rules for sickness absence and sick pay apply when an employee is off work because of Long Covid. If an employee is off work because of Long Covid – how do they report it and what will they be paid? Sick Pay Policy - Employees should check the Employer’s sick pay policy. Each workplace will have their own absence policy. Fit Notes – If an employee is absent from work for seven days or less, they do not need a fit note. This means that they can tell their employer that they are not well enough to attend work, known as self-certifying. If an employee has a period of sickness absence for longer than seven days, they should send a fit note to their employer on the seventh day of absence. They can get this note from their GP. Employees will be entitled to be paid sick pay, at either the statutory rate or contractual rate. Employees should check their contract of employment to see what entitlements they have to sick pay. If they do not have contractual sick pay, they should be entitled to SSP. How should employers support employees with their return to work? The employer’s sickness absence policy should describe the process that an employee can expect, so employees should check the sickness absence policy. Employers should seek Occupational Health advice to support an employee’s return to work after a lengthy period of sickness absence. The OH assessment should cover whether they are likely to be covered by the Equality Act, the need for a phased return (gradually building up hours and responsibilities) and any reasonable adjustments that might be necessary. Is Long Covid a disability for the purposes of the Equality Act 2010? The Equality Act 2010 offers protection for those in employment against discrimination and other prohibited conduct on the basis of a protected characteristic. The protected characteristic of most relevance in the circumstances of Long Covid is disability. A disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. Within this definition, substantial means “more than minor or trivial” and the disability must be likely to last/has lasted a period of 12 months or more to be classed as long term. Whether an employee satisfies the definition of disability for the purposes of the 2010 Act will therefore depend upon the nature and extent of their symptoms. Long Covid is a new condition and it may take time to fully understand it. However, it certainly can affect a person’s day-to-day activities and their ability to function normally. Relapses or changes in intensity of symptoms can also last for several months or more. Based on the known symptoms of Long Covid, it is entirely possible that employees with serious symptoms may be classified as disabled under the Equality Act 2010. However, the effects of Long Covid can vary from person to person. Each case will need to be considered on its own merits as to whether their condition qualifies as a disability. What are the employee’s rights if they qualify as disabled under the Equality Act 2010? In cases where the employee is classed as having a disability, they have the right not to be discriminated against because of this. This means that treating a Long Covid sufferer less favourably because they have Long Covid or, for example, have high levels of sickness absence or are unable to fully fulfil the requirements of their role, could amount to direct disability discrimination or discrimination arising from disability. The Equality Act also places a positive obligation on employers to consider what if any, adjustments can reasonably be made to alleviate any disadvantage suffered by disabled employees in the workplace. For employees with Long Covid, potential adjustments might, for example be moving an employee’s workplace so they don’t have to climb stairs or adjusting their working hours. Failure to make reasonable adjustments will put employers at risk of disability discrimination claims, and potentially other indirect discrimination claims based on the fact that Long Covid has been found to more severely affect older people, ethnic minorities and women. Harassment Employees who qualify as disabled will also be protected from harassment. Employees may face negative treatment from their employer because of their Long Covid symptoms. They may be subjected to intimidating, degrading and offensive behaviour because of their condition and experience disbelief and suspicion of their condition from their employer. A recent TUC report highlighted that around 20% of employees reported that their employer had questioned the impact on them of their symptoms, 13% had faced questions about whether they really had Long Covid at all and 5% reported that they had lost their jobs because of Long Covid symptoms. Can an employee be dismissed because of Long Covid? An employer considering dismissing employees with Long Covid because of their absence or their inability to do their job will need to follow a capability process and consider up to date medical evidence, as well as considering whether reasonable adjustments could be implemented to assist an employee in their work or with a return to work or the availability of any alternative roles. If an employer dismisses an employee without first carrying out a full and fair disciplinary or capability procedure, the employee could make a claim of unfair dismissal to an employment tribunal if they have more than two years’ service with their employer. Time limits A claim to an employment tribunal must usually be made within 3 months less a day: Discrimination Claims- an individual must submit their claim within 3 months (less one day) of the date of the last act complained of. In some cases, discrimination will be an ongoing act and in these circumstances the time for bringing proceedings will continue to run. Unfair Dismissal – the usual time limit for issuing a tribunal claim for unfair dismissal is 3 months less one day from the termination of the employee’s employment. Any employees experiencing difficulty with their employer due to Long Covid can talk to Thompsons Specialist Employment Rights Team on 0800 0891 331 or visit the Thompsons Covid 19 Legal Hub.