Is long COVID a disability? Update from the Equality and Human Rights Commission

The definition of disability in relation to the Equality Act is that an employee has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In April 2021 we published guidance for schools on long COVID, available here. Our view then was that there was a reasonable likelihood that employees with long COVID could be disabled for the purposes of the Equality Act.

In a statement the ECHR on 9 May 2022 the ECHR stated:

‘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.’

On 6 May 2022, the Office for National Statistics (‘ONS’) published estimates based on self-reported long COVID experienced by study participants, available here. It concluded that an estimated 1.8 million people were living with long COVID. Of those people, 67% reported that their symptoms adversely affected day-to-day activities, with 19% reporting that their ability to undertake their day-to-day activities had been "limited a lot". Fatigue continues to be the most common symptom.

Interestingly for schools, the ONS concluded that along with other identifiable groupings, prevalence of self-reported long COVID was greatest in teaching and education or health care.

The takeaway is that those with long COVID are not de jure disabled, but could well be considered disabled if their symptoms meet the definition of a disability under the Equality Act. Schools therefore need to take an individual approach to each member of staff, and to consider whether they need to provide reasonable adjustments in order for the staff to return to and attend work, and be conscious of less favourable treatment on the grounds of disability.

For further guidance on employment issues related to COVID-19 please contact Stone King’s Employment Law Team or your usual contact at Stone King who will allocate your query.