Legal Update by Bela Gor, Head of Legal & Content, Business Disability Forum
Is [long COVID/dyslexia/diabetes/migraine etc.] a disability?
Last week the Equality and Human Rights Commission (EHRC) unhelpfully tweeted that “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.” This set the Twittersphere chattering or should that be cheeping? The EHRC did subsequently issue a clarification of this sweeping, and incorrect, statement.
Whether a particular condition is a disability is a question we are regularly asked. The answer is simple if unhelpful – it depends.
As the EHRC said in its clarification, the Equality Act 2010 lists only three conditions by name; cancer, Multiple Sclerosis (MS) and HIV which are disabilities from the date of diagnosis. This means that any other condition, including long COVID, might be a disability if the effects of that condition meet the conditions of the Equality Act 2010.
These conditions are that the effects of the condition are:
- long-term i.e. must last or be expected to last for at least 12 months or the rest of the person’s life if shorter; and
- substantial i.e. more than minor or trivial
- and affect the person’s ability to carry out normal day to activities.
This is a broad definition and there are other factors to consider like the effect of treatment on the condition, which make the definition of disability more complex than it sounds. It is also a legal definition, so any medical consensus as mentioned by the EHRC is irrelevant. Medical professionals cannot say definitively that a person is or is not disabled for the purposes of the Equality Act 2010.
I have spent days, sometimes weeks, before a tribunal trying to prove that conditions ranging from a hernia to a rare auto-immune condition were disabilities – yes in both cases because of the effects of that condition on that individual. This does not mean that everyone with a hernia or the same auto-immune condition will be disabled for the purposes of the Equality Act. Case law on long-Covid is unlikely to determine that all cases of long COVID will be disabilities, contrary to the EHRC tweet.
The deciding factor is not the diagnosis. No diagnosis is needed for a condition to be a disability under the Equality Act. What must be proved is that the person has something (yes that vague) that is having a long-term and substantial adverse on that person’s normal day-to-day activities. There have been successful cases where medical professionals didn’t know what was causing the symptoms the person was experiencing but were agreed that those symptoms had a substantial adverse effect on normal day-to-day activities that lasted or were likely to do so for 12 months or more.
So, is long COVID a disability? The answer is that it could be for a particular individual, in the same way as any other condition could be a disability depending on the effects on that person. It is a case-by-case decision.
What does this mean in practical terms for employers? Don’t waste time and energy on trying to decide if someone is disabled by their long COVID, or any other condition. Instead of asking (and paying) lawyers to argue the case for weeks in a tribunal, ask the employee and yourselves what reasonable adjustments would enable the person to work. For advice on adjustments and what is meant by reasonable contact our Advice Service at email@example.com or call 020 7402 3020.