Employers faced with COVID-related discrimination claims
With all Covid restrictions being eased in the UK since 19 July 2021 and the government’s advice no longer to work from home if you can, the Times has reported that employees are taking legal action against businesses.
Claims include disability discrimination from employees suffering from illnesses such as long Covid and associated discrimination where an employee does not want to come back into the office due to living with someone who has a weakened immune system.
So what is considered a disability?
The Equality Act 2010 defines disability as:
"A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"
Is long COVID considered a disability?
Illnesses such as long Covid can amount to a disability if the impairment has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. An impairment will be long-term if it has or is likely to last for 12 months or more. However, tribunals will look at disability on a case by case basis. It is therefore far from certain that if someone has long Covid they will automatically be considered as disabled, particularly as it is a new condition with very variable effects that we are only just beginning to understand.
If as an employer, you have an employee with an illness such as long Covid, it would be advisable to get an occupational health assessment to decipher the extent of the condition.
Duty to make reasonable adjustments
Under the Equality Act 2010, where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, employers are under a duty to take reasonable steps to avoid the disadvantage.
Allowing an employee to continue to work from home could be a reasonable adjustment but it’s not the only one. It may be that an employee suffering from long Covid would benefit from working shorter hours, having longer rest breaks or even transferring to an alternative role, to give just a few examples.
What is discrimination by association?
An employee can be discriminated against when an employer treats him/her less favourably because of the disability of another person. This could relate to the protected characteristic of a person’s friend, spouse, partner, parent or anyone with whom they associate.
Does an employer have a duty to make reasonable adjustments in this situation?
This issue arose in the decision in Hainsworth v Ministry of Defence. The claimant, a civilian employee attached to the British armed forces working in Germany, asked for a transfer to the UK where there would be educational and training facilities for her daughter who had Downs Syndrome.
Having refused her request, Ms Hainsworth claimed breach of the duty to make reasonable adjustments, as her daughter was disabled. However, the Court of Appeal rejected her claim, finding that the reasonable adjustments duty only applied where the worker was disabled, not someone associated with them.
As such, although employers must take appropriate measures, where needed, to enable a person with a disability to have access to, participate in or advance in their employment, this is limited to measures only for the assistance of disabled employees (or prospective employees), not those who are not themselves disabled.
That being said, individuals can bring claims for direct discrimination by association, so employers must still be careful not to treat an employee associated with someone with a disability less favourably.
For further information and advice, please get in touch to find out how our employment team can help.