Long COVID puts UK employers to the test

8 September 2022 | Applicable law: England and Wales

For most people in the UK, Covid is an issue that seems, thankfully, to be receding into the rear-view mirror, but for a substantial section of the population it remains a present and pressing concern. This may be because they are amongst the almost 2 million people, or 3% of the population, who had post-viral fatigue syndrome, widely called ‘long COVID’, by the end of May 2022 according to Office for National Statistics figures.

According to a report from the Institute of Fiscal Studies (IFA) published in July¹ 72% of those suffering from long Covid were limited by the condition and 21% were limited ‘a lot’. The IFA report defines ‘long COVID’ as the experience of ongoing symptoms several weeks after the initial COVID-19 infection and concludes that it is on the rise, with an aggregate impact on the health of the working population equivalent to 110,000 people being off sick. It is this group that is most likely to present employers with particular challenges.

The recent decision by an employment tribunal in Scotland in the case of Burke v Turning Point Scotland² that long COVID can be a disability increases the need for employers to be alive to the risks that could arise from misunderstanding or mismanaging the condition.

So what does this mean for employers?

Employers may say that there is nothing unusual about having to deal with health issues in the workplace and to a degree, that is true – employers should be applying normal principles of sickness absence management. How is long COVID different? There are several factors that employers should bear in mind:

  • The effects of long Covid vary enormously from individual to individual. For some employees the effects are catastrophic and disabling, involving paralysing fatigue, brain fog and even loss of muscle function. For others the effects may be long term, but milder and the effect on their ability to work may, for a time, be limited or imperceptible. In between there will be a range of symptoms of varying severity. In very many cases symptoms may fluctuate over time. It is vital for employers to be aware of this range and fluctuation of symptoms and create flexible policies which are reviewed on a regular basis.
  • Long COVID is not evenly spread through the population. The numbers are higher among those with pre-existing health conditions, women and middle-aged people. Where an issue has an uneven impact in the population employers need to be careful not to exacerbate that impact with policies that amplify the disadvantage and cannot be objectively justified (an example might be a hostile attitude to home-working when work can in fact be adequately performed from home).
  • Long COVID is a condition that medical experts are only just beginning to understand. This means that obtaining definitive information, particularly about prognoses, may be particularly difficult. Employers may be left wondering whether and when they might be able to justify dismissing an employee on long term sick leave in the absence of clear medical advice. They may need to be pro-active, seeking to enquire beyond the summary reasons given on sick notes and open-minded to the possibility that recurrent, short-term absences, with fluctuating or even varying symptoms, may yet be linked. When seeking independent medical input, employers should ensure that they choose their expert with care (and consider seeking out an expert with some experience of this novel condition).
  • Employers may find that the attitude of PHI insurers towards employees with long COVID may be difficult to discern. Some may have changed their position since the Equality and Human Rights Commission confirmed (after initially suggesting the opposite in a tweet in May 2022) that it agrees that long COVID can be a disability.

All of this means that employers cannot simply develop a one size fits all approach to long COVID cases. They will need to look at each case individually. The fluctuating nature of the condition may make putting reasonable adjustments in place difficult and they may struggle to obtain the sort of medical information they need to make responsible decisions including whether it is feasible to continue to employ a long COVID sufferer or support an application for PHI.

It seems that long COVID may turn out to be as challenging for employers as for the employees who are suffering from it. Good communication and equipping managers with the knowledge and understanding they need to recognise and deal with the condition will be critical to finding solutions.

For more articles addressing our changing and future world of work, take a look at our #WorkingWorld campaign.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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