April 30, 2021

With the recent news that over a million UK workers are continuing to suffer debilitating effects after contracting COVID-19, many employers will be facing the challenge of managing long-term ill-health absenteeism. But regardless of the health condition involved, determining at what point a decision can reasonably be reached that an employee is unfit to return to work by reason of ill health always involves a hard judgement call. This article provides a timely reminder of the procedural steps that need to be taken when dealing with prolonged ill-health absence and the key considerations that determine whether any resulting dismissal is unfair or discriminatory.

Absenteeism caused by ill health can often be managed without the need
to escalate matters to the point where formal meetings and warnings become necessary. However, concerns will need to be dealt with formally whenever the business disruption caused by the level of absence threatens to become unacceptable. Many employers have sickness absence policies that specify a trigger point, after which the continuing absence will be dealt with in accordance with the procedure stipulated in the policy. But even if this is not the case,
an employer will need to hold formal meetings with the employee to establish the reasons for the absence and a viable date when the employee is likely to return to work.

Where the employer concludes that there is little prospect of the employee returning anytime soon, the question of the employee’s potential dismissal will likely have to be addressed. At this point, the employer will need to satisfy itself that there is a potentially fair reason for dismissal and set about adopting a fair procedure for bringing the employment relationship to an end.

This article focuses on the procedural steps that this process involves. We start by looking at the means by which the employer should seek to discover at the outset what is wrong with the employee and how long any consequential sickness absence is likely to last. Next, we summarise the key factors likely to be taken into account by an employment tribunal when determining whether a dismissal for prolonged sickness absence is fair or unfair. In addition, we shall explain the potential for disability and other forms of discrimination, depending on the nature of the medical condition involved. Finally, we outline the long-term ill-health benefits to which employees may be contractually entitled and which can – and, in some cases, should – be provided by the employer as an alternative to dismissing.

Long COVID: a new health challenge for employers

A great matter of concern emerging from the current pandemic is evidence that up to 10% of people who contract COVID-19 are experiencing longer term symptoms, often severe. The term ‘long COVID’ has been coined for symptoms that last for longer than 12 weeks after initial infection, and on recent estimates this applies to over a million UK workers. It is already a recognised medical condition and is the subject of much discussion in the scientific literature, although a full evaluation of its causes and effects is ongoing.

According to guidance published by Public Health England in September 2020, persistent health problems caused by long COVID range from skin rashes and protracted loss of taste/smell to thrombosis, liver/kidney dysfunction and myocarditis. The most common symptoms are fatigue, body aches, shortness of breath, difficulty concentrating, inability to exercise, headache and difficulty sleeping. Not surprisingly, the condition can also lead to mental anguish and depression. These long-term effects are not confined to those who needed to go to hospital shortly after contracting the virus but extend to people who were not seriously unwell in the immediate aftermath of infection.

It is clear that long COVID can render people unable to work for months and is posing a major long-term challenge for employers and employees alike. This has prompted the NHS to spend £10m on creating a network of 60 specialist long COVID clinics nationally. One challenging aspect of the condition is that many sufferers do not experience a gradual (albeit slow) recovery, but rather a cycle of improvement followed by deterioration once again.

Employers would best be advised to deal with long COVID in the same way as
any other medical condition, and to manage resulting long-term absence in accordance with the principles and guidance outlined in this article. Adopting a blanket approach to those suffering from the condition would be inappropriate; rather, discussions should be held aimed at identifying precisely how the condition is affecting the employee from a personal point of view, out of which appropriate support measures can be tailored and implemented. In addition to dealing with absence, employers may need to address the problem of employees who try to continue working with long COVID but are unable to perform at their normal level. In this regard, they may need to manage individuals who are fit to work one day but debilitated by their condition the next.

Organisations will be expected to be as sympathetic as possible and accommodate temporary adjustments to working practices, such as reduced hours. In this regard, advice from occupational health and medical professionals will be key to understanding what types of adjustment need to be made, and whether these are practicable. This raises the question of whether long COVID is a ‘disability’ for the purposes of the EqA. At present, this is difficult to answer. An employee would have to show that the effects of the condition are substantial and long-lasting (i.e. have already lasted, or are likely to last, more than 12 months) and adversely affect his or her ability to carry out day-to-day activities. There is, as yet, little medical clarity as to how long the physical effects of COVID-19 are likely to last. But it should also be borne in mind that sufferers of the condition may have another, pre-existing, condition (e.g. diabetes or asthma). Even if an individual’s post-COVID condition is found not to amount to a disability in itself, the combined effect with the pre-existing condition may result in an overall substantial and long-term adverse effect such as to satisfy the legal test for disability.

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