Not all long Covid cases will amount to a disability and it will be up to the courts to decide this on a case-by-case basis, the UK’s equality watchdog has said.
The Equality and Human Rights Commission has issued an updated statement relating to whether long Covid could be considered a disability under the Equality Act 2010.
Although it is not formally recognised as a disability in law, despite groups including the TUC campaigning for it to be recognised as such, its symptoms and the effect they may have on a person’s ability to perform day-to-day tasks may mean long Covid meets the definition of disability.
People suffering with long Covid may experience symptoms including cognitive impairment, fatigue, coughing and breathing difficulties.
Earlier this week, the EHRC tweeted that without case law or scientific consensus, it did not recommend that long Covid be treated as a disability.
Discussions continue on whether ‘long covid’ symptoms constitute a disability.
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
— EHRC (@EHRC) May 7, 2022
The EHRC later clarified this in a statement: “Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act.
“This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.”
The EHRC recommended that employers continued to consider reasonable adjustments and access to flexible working, based on the circumstances of individual cases, to avoid claims of disability discrimination.
The latest estimates from the Office for National Statistics show that 1.8 million people report having symptoms of long Covid.
In a blog post today, the TUC said the condition was a key issue for working age people, but government and employers were not taking it seriously.
A TUC survey last year found that half of respondents with long Covid had experienced disadvantage or discrimination at work and one in 20 had been forced out of their jobs.
“Statements like this [on Twitter] from the EHRC give license to bad bosses to deny reasonable adjustments to those experiencing long Covid, which keep them in work and supported,” the blog post says.
“This [tweet] also directly contradicts advice to employers from the EHRC at the beginning of March 2022 which stated that in the absence of clear legislative protections, organisations should treat staff who have long Covid symptoms as if they have a disability.”
The blog post goes on to say that the TUC welcomed the clarification from the EHRC, but it believed “long Covid should be specified as a disability under the Equality Act along with cancer, HIV and other conditions”.
“Taking an employment tribunal case is a significant burden for anyone, let alone workers who are experiencing long Covid symptoms and this would mean workers benefit from the disability provisions within the Act from the point of diagnosis,” it said.