Earlier today the Equality and Human Rights Commission posted an incredibly unhelpful tweet on whether Long Covid is a disability. It includes a line of argument that is, I think, also inconsistent with the Statutory advice it has provided in its Employment Code so its inclusion is doubly confusing.
What is disability in law?
Going back to basics except for a limited number of deemed disabilities (such as cancer) the Equality Act imposes a threefold test which a claimant must meet to satisfy the definition of being disabled. This is important because if a worker wants to argue that an employer needs to, for example, make reasonable adjustments for them then the employer will only be under a duty if that person is disabled.
In order to succeed in (almost) any disability discrimination complaint the worker needs to satisfy the legal definition of disability. The almost is because there are exceptions in some types of direct discrimination and, (very) arguably, some indirect discrimination situations around issues of perceived (but not actual) disability and associative discrimination.
The three-fold general test is that a worker:
- Must have a physical or mental impairment; and
- This impairment must have a more than trivial impact on their ability to complete normal activities compared to if they did not have this condition; and
- The impact must have lasted or be likely to last at least twelve months (or be a progressive condition but here the test for impact on daily activities is lower).
If an employment tribunal finds a worker meets these needs, then they are a disabled person under the Equality Act 2010.
Naturally, most workers and most employers do not want to air personnel disputes in the public forum of employment tribunals, if they act reasonably, they will assess whether disability provisions apply long beforehand. It is in this context that what EHRC say is very important as it is a guide to employers to what they should do to stay on the right side of the law and not discriminate against workers.
Long Covid is essentially the idea that the after affects of a Covid infection last much longer than the usual period of primary illness, and that a person is much less able to participate in activities they could previously have done because of excessive fatigue and other ailments. One reason I think the question of disability is that many of those affected seem to have previously been in good health and, therefore, may well not have been confronted or been as aware of the protection recognition of disability may entitle them to against unfair treatment at work. And so, a normal reading of a tweet that dismisses that entitlement is likely to cause people who may benefit from legal rights not to pursue these (I think the tweet may be a result of sloppy wording, but the result is the same irrespective of intent).
So, what have EHRC said?
The tweet (archived version here) in question was this:
Discussions continue on whether ‘long covid’ symptoms constitute a disability.— EHRC (@EHRC) May 7, 2022
Without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability.
More advice on reasonable adjustments can be found – https://t.co/CsqgmuIKBD
The particularly dubious position is that this tweet, aimed as it is to employers, is that “EHRC does not recommend that ‘long covid’ be treated as a disability.”
Some people are complaining that EHRC are overstepping their bounds in making a recommendation on a question that only a tribunal can determine. I think that is a misguided criticism. Yes it is true that a tribunal is the legal determination is made by a tribunal only but that is not the reality of the situation, it is a decision employers make every day of the week. When keeping in mind the three-fold test whether or not ‘long covid’ is even a recognised condition is not the issue, it is whether there is a substantial and long term physical or mental impairment – a medical diagnosis is not necessary for that test to be met (see Ministry of Defence v Hay (2008).
Viewing the question in view of the threefold question it is quite possible that some people who say they have long covid are not disabled, some who say they have it will be because of the impairments they suffer. There is nothing unusual in that, some people are disabled by migraines, some are not, some are disabled by depression, some are not, etc. EHRC could have made a recommendation that whether a person is disabled ‘depends’ and that would have been more legally correct.
However, I don’t think even that, while much better than what EHRC did put out would have been enough. To explain let me quote from the EHRC Statutory Code (which, for the record I think is good) in its advice to employer’s recruiting potentially disabled workers into their business, at paragraph 10.43:
It is good practice for employers and occupational health practitioners to focus on any reasonable adjustments needed even if there is doubt about whether the person falls within the Act’s definition of disabled person.EHRC Employment Code, at 10.43.
EHRC have issued similar guidance elsewhere. Instead of addressing (and giving up) in its commentary on the legal question of whether Long Covid is, or could be, a disability the cause of inclusion would have been advanced if instead it had, in line with the line taken in the Statutory Code said something like:
The experience of Long Covid may be a disability but that is a legal question. To avoid discrimination employers should focus on the needs of employees for adjustments rather than the legal question alone. We have advice on this here:
It is even within the character limits for a tweet!
So it is not that fact of a recommendation that was EHRC’s problem, it is that the recommendation was the wrong one. A recommendation that made clear the law was in flux but good practice in potentially disabled workers was not was entirely possible but EHRC decided to depart from that previously adopted line. I really hope that does not lead to employers adopting unhelpful approaches or workers being dissuaded from asserting their legal rights, but I fear it will.
Also, I find it peculiar that in EHRC have only made reference to the duty to make reasonable adjustments. With all the talk of pressure on workers to return to physical workplaces and the potential for numerous employees to be managing conditions better without commutes etc it is unlikely that the duty to make adjustments is the only type of disability discrimination potentially engaged.
Leaving it to individuals
Underlying this advice is a more fundamental one to the promotion of equality in employment. The status of Long Covid is unclear because individuals have not (yet) individually brought disability claims that have been determined. The ‘we give up, we don’t know’ approach of EHRC shown here is indicative of this willingness to just let those few individuals brave enough to commence proceedings get on with it themselves; this despite pretty strong jurisdiction for EHRC to be much more forthright in the employment law landscape under section 3 of the Equality Act 2006 and associate enforcement powers to promote equality off its own back.
Steps to take
I had planned to post on how the Covid experience can help equality before this issue arose and will do so which gives an example of how a proactive approach of employers can help increase equality of opportunity but then EHRC do something like this.
I have no doubt that some, and possibly many, of those who are experiencing symptoms associated with Long Covid will meet the legal definition for disability and they should not be dissuaded from asserting rights by counterproductive messaging from the Equality Commission.
It is true that there is no definitive finding that Long Covid has been adjudged to be a disability but given tribunal delays and the relatively recent history this is not surprising. Any worker who thinks they may be disabled should focus not so much on getting a diagnosis of “long covid”, although that will help, but practically explain how they have actually been affected. Added to that workers should highlight the good practice advice to employers in the statutory code rather than the unhelpful commentary in EHRC’s Twitter output.
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