Ask the Expert: My employee has long Covid - what should I do?

Q. One of our practice nurses caught Covid six months ago and has been off sick almost the entire time since then. We’re not sure when she’ll be fit to come back as she is still quite unwell. What should I do?

It may be wise to proceed with caution here and to take time to carefully consider the employee’s specific circumstances before taking any further action. A recent employment tribunal case has brought this condition back to the fore after it was held that the symptoms brought about by long Covid may be classed as a disability.

This is significant from an employment law perspective as an employee who is classed as disabled in employment terms is entitled to a wealth of protection and added employment rights.

In the case of Burke v Turning Point Scotland, Mr Burke had worked as a caretaker for almost 20 years when he contracted Covid-19 in November 2020, initially suffering fairly mild symptoms. However, his condition later worsened and he experienced extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches. He was unable to work for nine months and was eventually dismissed on the grounds of ill health.

He took his case to an employment tribunal and at a preliminary hearing the judge decided that Mr Burke’s symptoms amounted to a disability within the definition of the Equality Act 2010. It was found that Covid had a substantial and long term effect on his ability to undertake his normal day-to-day activities, which meets the definition of a disability under the Equality Act.

The tribunal gave Mr Burke permission to go ahead with his claim of disability discrimination against his former employer.

Key points

• Long Covid may amount to a disability, so employers should bear this in mind when dealing with such cases.
• It is not a condition that is automatically deemed to meet the definition of disability, so employers must consider each staff member’s individual circumstances.
• You should think about what reasonable adjustments to the environment or role may be appropriate to help an employee suffering with long Covid, tailored to their specific symptoms.
• HR and employment processes should be applied fairly to all staff. For example, you should not select an employee for redundancy or retirement because they are disabled.
• As with any employee relations case, good communication and engagement with the employee are crucial.
• Be sure to follow the practice’s absence/capability procedures.

If you need further support with a case related to long Covid, please do not hesitate to contact the HR and employment advisory team on advice@mddus.com