Definition of disability and its relevance to Long Covid
Disability is a legal definition. How ACAS describes a disability and the relevance to Long Covid is outlined in Box 1.
By law, a disability is a physical or mental impairment that has a ‘long-term and substantial adverse effect‘ on a person’s ability to do normal day-to-day activities.
‘Long term‘ means either: it will affect them or is likely to affect them for at least a year it’s likely to last for the rest of their life
‘Substantial adverse effect’ means more than just a minor impact on someone’s life or how they can do certain things. This may fluctuate or change and may not happen all the time.
Long COVID is still a new illness, and it will take time to understand it fully. It can affect a person’s day-to-day activities and it’s currently understood that it can last or come and go for several months, even years.
The effects of long COVID could also cause other impairments.
Employers should focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability.
Box 1: ACAS’ definition of disability and how this relates to Long Covid
So what does this mean for people living with Long Covid?
The definition in Box 1 makes it clear that whether Long Covid is a disability depends on how it impacts on an individual. Not all Long Covid sufferers will be disabled, but some will. Long Covid is not an automatic disability in the UK like cancer, HIV or MS nor is it likely to be as individual symptoms vary so much.
As an employee you can tell your employer that “you think you have a disability”.
An employer should consider whether an employee may be disabled even if they haven’t declared this (Box 2). This is the case even if occupational health have not commented on whether the 2010 Equality Act applies.
The Statutory Code of Practice on Employment 2011 Ch 5, Para 5.15 states: “It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.”
Box 2: Statutory Code of Practice on Employment and disability
Several employment tribunals have concluded that an individual with Long Covid is disability (Box 3). However, employment tribunals are not legal precedence. For legal precedence an Employment Appeal Tribunal is needed.