From the 1st April 2022, almost all legal covid restrictions have been removed and the UK moves forward with the ‘living with covid plan’. However, there are still various implications to be considered in the workplace.
As we look forward, David Dixey, employment law specialist in the Holmes & Hills Employment Law Team provides an update on certain changes to statutory sick pay (SSP) and discusses the impact of long covid in the workplace.
As of 25th March 2022, the Government has revoked the temporary measures put in place during the covid-19 pandemic whereby individuals were deemed to be incapable of work and therefore entitled to statutory sick pay (SSP) because they were self-isolating or shielding. In addition to the “Deemed Incapacity” provisions, the regulations in 2020 also disapplied waiting days in respect of SSP where an individual’s incapacity for work was related to covid-19. Consequently, SSP was available from the first day of incapacity.
From the 25th March 2022, the “Deemed Incapacity” provisions are revoked meaning an individual must now actually be sick or incapable of work before becoming eligible for SSP. Those who are asymptomatic or only have very mild symptoms will no longer be eligible for SSP, even where they test positive. However, the new regulations do continue to provide the suspension of waiting days for payment of SSP where a period of incapacity commenced on or before 24th March 2022.
Post-covid syndrome, more commonly known as long covid, presents difficulties and challenges for employers and HR Managers. There is no legal definition, and scarcely a recognised universal medical definition, of long covid. Over recent months various organisations (such as the Trades Union Congress (TUC)) have asked the Government to classify the condition as a disability; this would help those employees suffering from the condition but also make handling such cases much easier for employers.
Recently the head of employment policy at the Equality and Human Rights Commission (EHRC) suggested that employers and other organisations should treat employees who have long covid symptoms as if they have a disability for the purposes of the Equality Act 2010. There are concerns that the uncertainty over long covid will place employers at risk; it may subsequently be ruled that they have not followed equality legislation and successful disability discrimination claims may follow.
The Government has so far declined to legally define long covid, presumably because symptoms can vary and fluctuate enormously, both as regards the nature of the illness, how long symptoms last, and the absence of any clear prognosis.
Failing Government intervention, it is not clear whether the condition can be described as “long term” in order for it to be classed as a disability under the Equality Act 2010.
The EHRC recommendation, therefore, suggests that employers should approach possible long covid cases as they would any other potential disability. In practice this means:
In practice, it may be difficult for employers to easily manage long covid cases due to the absence of any clear medical or legal definition. The uncertainty over prognosis may make an employer’s task particularly difficult when assessing evidence regarding an employee’s current and future ability to return to normal duties.
In short, more guidance is required from both Government and the medical profession. This may not be immediately forthcoming and therefore the approach set out by the EHRC should at least help to reduce the potential prejudice suffered by employees and by extension the risks faced by employers.
Update June 2022: Is long covid classified as a disability: Employment Tribunal rules under the Equality Act 2010
If you require employment law advice in relation to Coronavirus or long Covid, get early and expert Employment Law advice from Holmes & Hills Solicitors.
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