The long march of Covid
Monday, December 20, 2021
There just seems to be no escape from Covid. For some, the viral grenade took the form of furlough, job loss, business turndown or failure. For many others, sadly, it meant hospitalisation and in the worst cases death.
But what about those in the halfway house that is Long-Covid? Those who have recovered to an extent but are left with semi-permanent symptoms which may be invisible and hard to prove.
The problem with Long-Covid, says John Palmer, a senior adviser at Acas, the government’s workplace conciliation service, is that “it’s a new condition and we don’t have any prior evidence to determine its potential impact; that data is still being collected”. However, he’s seen Long-Covid affect a person’s day-to-day activities and that it can last or come and go for several months.
Long-Covid is a problem for employers and employees alike. According to an ONS report published in February (2021), using data from just over 9,000 respondents, 22.1% were still reporting symptoms five weeks after infection and 9.8% after 12 weeks. At the five-week mark 23.6% of females reported symptoms versus 20.7% for males.
Palmer points to data from June (2021) when “the ONS published statistics that said nearly a million people in the UK had self-reported Long-Covid... a considerable number of employees have been, or will be, diagnosed with it and therefore the condition is likely to be a factor for many employers in all different manner of workplaces”.
In her day-to-day role, Jennifer Mann, principal associate in the Employment Department of Eversheds Sutherland, is seeing queries from clients in relation to employees with Long-Covid and associated long-term sickness absence, or repeated short-term absences.
With this background it’s understandable that Palmer says that “we would encourage employers to be ready to approach employees with Long-Covid in a flexible and open-minded manner”.
Dealing with claims
The matter usually arises, says Mann, when handling a situation of long-term sick leave. When it does arise, she says “it is important to meet with the employee to understand their views on their condition and when they anticipate a return to work”.
From there, she advises seeking medical evidence via a report from the employee’s GP, or occupational health – to understand the diagnosis, prognosis, and whether there is anything the employer can do to support a return to work.
The reason for her stance is because, as Mann points out, “the law underlying long-term illnesses is reasonably settled. But what is less clear is whether Long-Covid amounts to a disability for the purposes of the Equality Act 2010”.
As the law presently reads, if an employee is disabled, a higher burden is placed on an employer to demonstrate that all reasonable adjustments have been made to assist the employee in a return to work, and any less favourable treatment, such as dismissal, is objectively justified as a proportionate means of achieving a legitimate aim.
Disability, for the record, is defined for our purposes as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal day-to-day activities. “‘Substantial’”, says Mann, “is something which is more than minor or trivial. It could mean an inability or taking much longer than it usually would to get dressed, do housework or carry shopping bags. ‘Long-term’ means a condition that has lasted or is likely to last 12 months or more.” With this definition she can see why Long-Covid could amount to a disability under the Equality Act, but notes, “each case will need to be determined on its merits based on the information from the employee and their doctor”.
And Palmer thinks the same and expands on the time qualifier: “‘Long-term’ means the impairment has lasted, or will last, for at least 12 months, and can come and go or is likely to last for the rest of the person’s life.”
Many employers may choose to err on the side of caution and operate as if employees with Long-Covid are protected by the Equality Act 2010, particularly when so little is known about the condition and whether it is likely to last for more than 12 months. Mann tells how 18 months into the pandemic, “we are now seeing cases of Long-Covid that have already lasted more than 12 months”.
It is sensible, according to Palmer, that employers should “focus on the reasonable adjustments that can be made rather than trying to work out if an employee’s condition is a disability”.
An employer’s response
So, how should employers deal with employees who are claiming to be suffering from Long-Covid, especially where symptoms aren’t obvious?
Mann’s view is surprisingly simple. She says: “It is not for an employer to diagnose or ‘disprove’ a condition and the impact it has on the employee. Rather, it is incumbent upon them to understand the employee’s view and the medical evidence.” This will allow an assessment of where a return to work is likely in the reasonably foreseeable future, and whether there is anything they can do to assist the employee return to work.
Palmer takes a similar line. He recommends employers agree how and when to contact employees during any absence. “When it comes to supporting an employee directly, the best starting point is to keep channels open between the manager and the employee so an ongoing conversation can take place about ways to offer support.” He reminds that support should be tailored to individuals, particularly so in the case of a new condition such as Long-Covid. Further, Long-Covid should be treated in the same way as any other illness or long-term incapacity. And if someone has a period of sickness absence for longer than seven calendar days, no matter how many days they work each week, they should get a fit note from their doctor.
A disability is defined
One thing is certain, there is a legal duty placed upon employers which Palmer details: “To consider making reasonable adjustments when they know, or could be expected to know, an employee or job applicant has a disability and if an employee or job applicant with a disability asks for adjustments.” He adds that this hold true too if an employee with a disability is having difficulty with any part of their job, and when an employee’s absence record, sickness record or delay in returning to work is because of, or linked to, their disability.
But as to what amounts to a ‘reasonable’ adjustment will, says Mann, depend on the information from the employee and the medical evidence (and what the business can feasibly accommodate), but could include a phased return, reduced hours, or light duties either on a temporary or permanent basis.
A natural question is at what point can an employer dismiss an employee unable to return to work or work normally?
The answer to this question involves just one word – ‘fairness’ and both Palmer and Mann say the same: an employer dealing with an employee with Long-Covid needs to follow a fair process in order to protect itself against unfair dismissal claims and should have regard to its own absence management policy.
Mann says: “Usually, a fair process will involve meeting the employee a number of times – often over a number of weeks or months, as the prognosis may change over time – and understanding the medical evidence.”
She adds that if it becomes clear that there is unlikely to be a return to work in the reasonably foreseeable future, and there is nothing the employer can do to support the employee in a return – and any reasonable adjustments have been explored and exhausted – then it may be appropriate to dismiss.
Palmer emphasises the point that, while the employee has not done anything wrong, “something has still happened that means they are no longer able to carry out the job they were employed to do”.
He knows from experience that there are many potential outcomes to a capability process, “and employers should be looking at options to support and work with the employee first to see if there are any adjustments to the job that could make it work, or if there are any other suitable roles the employee might be able to do instead”.
Nevertheless, Mann says that “the employee should be warned towards the end of that process that the viability of their employment is in question, and prior to the potential final meeting, they should be advised that one outcome of the meeting may be dismissal”.
That said, it can be difficult for an employer to justify a dismissal taking place before company sick pay has been exhausted. Similarly, if there is a group income protection policy in place, whether the employee could benefit should be explored before any dismissal.
And in those extreme situations where a capability process might result in a dismissal, Palmer encourages employers to seek legal advice before taking such a decision because of a new condition like Long-Covid. He says that “if employers are unfamiliar with capability processes, they can go to Acas for advice and guidance”.
Where employees can work, but not at full capacity, a similar process must be followed. Here Mann states that the employer would need to demonstrate that it is not feasible to accommodate reduced hours or duties on a permanent basis, referring to such on the impact on the wider team, productivity or customers. She expands on this and says that if the employee is disabled, “the employer would have to demonstrate that it would not be a ‘reasonable’ adjustment to continue with such measures until the employee has recovered”. Further, there is a greater expectation on larger employers to accommodate such measures.
Failing the process
If an employer does not follow a full and fair procedure, an employee could have a case for unfair dismissal, even if the reason for dismissing them was valid.
Palmer says that tribunal action can be avoided as the employee must tell Acas first that they want to make a claim: “Acas will offer them the option of ‘early conciliation’, a free service where it talks to both the employee and employer. It gives them the chance to come to an agreement together, however if this cannot be resolved through Acas then the matter could go to tribunal.”
Employers should be under no illusion that if a case is brought before an Employment Tribunal, and it finds that an employee has been unfairly dismissed, compensation could be awarded based on an employee’s loss of earnings. As Mann outlines, compensation is made up of a basic award which uses the same formula as a statutory redundancy payment and a compensatory award of up to one year’s pay, capped at £89,493.
While that figure seems high, Mann counsels that “if the employee’s condition is found to be a disability and any dismissal or less favourable treatment is found to be discriminatory, or reasonable adjustments have not been made, compensation will be uncapped and will reflect likely ongoing loss of earnings and an award for injury to feelings”.
And to drive the point home are statistics from the Ministry of Justice for 2019/20. These show that the median award for unfair dismissal was £6,646, with the mean average £10,812. For disability discrimination, the highest award was £265,719, with the median award £13,000 and the mean £27,043.
Few firms will want to pay out these sums.
Covid seemed to be the stuff of science fiction – that something so small could wreak so much havoc on so many people. But Covid is with us and while the majority deal with it, many will suffer well into the future; it’s a problem that they, their families and their employers will have to deal with for some time.
So, unless employers have a burning desire to appear before a tribunal, they should avoid acting in haste only to repent at leisure. al.