Clearly a quiet week over at Acas Towers, judging by all the detailed advice and reasoned analysis which doesn’t feature in its new two-page guidance note on long Covid (also referred to in the guidance as “long-tail Covid”, which is the same but with more feathers).
The main thrust of the guidance is notionally to address the question of whether long Covid is a disability for Equality Act purposes. Its debilitating effect in some cases is clear from press coverage, and the Acas guidance refers you through to some NHS information about symptoms which includes extreme fatigue, “brain-fog” (problems with memory and concentration), joint pain, insomnia, depression/anxiety, tinnitus and others. Some or all of these either alone or coupled with other lesser side-effects could certainly have the required substantial adverse effect upon normal activity. But is the complaint long term, in the sense that it has lasted or is expected to last for twelve months, or will reoccur over a person’s life?
The guidance does not answer this directly, but perhaps does so by implication – “long Covid is a new illness and it may take time to understand it fully … it is currently understood that it can last or come and go for several months“, it says. “Several months” is obviously some way short of twelve. The NHS page referred to says similarly that long Covid symptoms “last weeks or months after the infection has gone“. Therefore current wisdom appears to be that long Covid will not last, or certainly cannot currently be expected to last, for long enough to constitute a disability by itself. There are probably cases of early Covid sufferers whose long Covid has now lasted twelve months, and that might mean that they as individuals could count as disabled. However, that does not mean that all long Covid victims are thereby disabled, or that the misfortune of a few suggests that long Covid can reasonably be expected to last so long as a general rule. On our current state of medical knowledge, the vast majority of long Covid sufferers will therefore not count as disabled at law.
As if afraid that this might be something of an anti-climax, Acas dances nimbly but rather obviously around saying so in as many words, suggesting instead that the employer should “focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability“. This blurs unhelpfully the line between reasonable adjustments proper, i.e. those required by Section 20 of the Equality Act where the employee is disabled, and ordinary good employment practice for sick employees. There need not be a huge difference in terms of the actual practical steps which might be taken, but there most certainly is as a question of law. An ordinary capability dismissal does not impose on the employer anything like the same proactive duties to “level the playing field” for the sick employee as the Equality Act requires when he is disabled.
What might those measures be? According to the new guidance, nothing really unique to long Covid – talk to the employee about a phased return to work, possible adjustments to duties and what he is content for the employer to tell others at work about his illness. Acas confirms that from the absence management perspective there is also nothing special about long Covid – “the usual rules for sickness absence and sick pay apply when someone is off work because of long Covid”.
The guidance then floats the entirely unrelated question of whether an employer’s handling of long Covid cases could constitute discrimination on other grounds. The complaint, it says, has been found to affect more severely older people, ethnic minorities and women. From there, “employers must avoid discriminating by age … race or sex” it cautions sternly, without indicating in any way how the two may be connected. If what Acas hints at here is the possibility of a discrimination claim arising out of the greater propensity of one sex, race or age to suffer severely from long Covid (as opposed to suffering from it at all) then that would be a very bold assertion.
There must surely be some statistical difference, however minor, in the prevalence or impact of almost every medical complaint between separate demographic groups/ethnicities/genders/ages (except pregnancy-related illnesses which are protected separately). However, it is a very far cry from there to the employer potentially needing to treat employees off sick with any particular complaint more or less gently depending not on the severity or prognosis or the length or disruption of the absence, as we might expect, but on the protected characteristics of the employee in question and varying and/or marginal differences in how that impacts the likelihood or length of his/her absence for that specific condition.
The concept of gender/race/age-specific illnesses is not one easily transferable into actual law and the Acas guidance does not do it. If and when the passage of time shows that long Covid can be long-term for Equality Act purposes, then that argument might then apply to require justification for the dismissal of employees deemed disabled by it, as it does now for other disabilities. However, we do not think that it can realistically go further than that into other protected characteristics. Long Covid may be a deeply unpleasant and miserable proposition for the individual, but this new guidance actually (and seemingly despite its best endeavours) acts as considerable reassurance to employers that in the vast majority of cases it is neither a disability nor merits any more careful sickness management procedures than they would normally apply already.