Long COVID: the increased risk of simply 'rubber stamping' Occupational Health advice...
Released On 24th Jun 2022
This week we bring you news of a recent Tribunal judgement which found that an employee who was suffering with the symptoms of long COVID, was classed as disabled, under the Equality ACT 2010.
The employee in questions was employed as a caretaker. He tested positive for COVID19 and soon after started to suffer with severe headaches and fatigue which affected his ability to undertake many normal day-to-day activities, including cooking, shopping, showering, dressing, and walking. He also suffered, amongst other things, with joint pain, loss of appetite, impaired concentration, and sleep problems.
Unfortunately, the employee's symptoms were unpredictable and despite some periods of improvement, he suffered relapses, particularly concerning fatigue. This continued to impact on his ability to undertake normal day-to-day activities.
The employee was off work for approximately 10 months, until he was dismissed for ill health by his employer. He subsequently brought unfair dismissal and disability discrimination claims which required the Tribunal to determine, amongst other things, whether the employee was classed as disabled, at the relevant time (i.e., when he was dismissed).
The Tribunal, applying the legal test for disability, as per s.6 The Equality Act 2010, found that:
- The employee had a physical impairment, namely post-viral fatigue caused by COVID19.
- The post-viral fatigue had a substantial adverse effect on the employee's ability to carry out normal day-to-day activities. (The Tribunal found that the employee was not exaggerating his symptoms, the fluctuating nature of his symptoms were consistent with a TUC report report published in June 2021 and the lack of detail in his GP fit notes concerning his impairment was consistent with the restrictions of in-person GP consultation, at that point).
- The effect was likely to be long term as it "could well" be that it would last for a period of 12 months when assessed from the point of the dismissal.
Now the above may sound fairly straight forward, on the stated facts. However, as employment lawyers we know all too well that the reality of dealing with and managing the impact of long COVID in the workplace, is the opposite. (Indeed, our regular readers will no doubt remember our e-bulletin from 1 February 2022 – “Navigating the unknowns of Long Covid” which sets out some practical pointers (please click the button 'Visit our site' below, to see past e-bulletins, should you wish to remind yourself).)
One specific area of (continued) difficulty is in relation to obtaining Occupational Health ("OH")/medical advice on an employee suffering with long COVID. This is because long COVID is still a relatively new condition, with wide ranging, fluctuating and unpredictable symptoms and varying degrees of impact. The result is that the potential for receiving imprecise prognoses’ and/or receiving conflicting medical views, is heightened.
To minimise the risk of receiving disability discrimination and/or unfair dismissal claims, it is therefore more important than ever that employers do not just simply rely on medical evidence/OH advice which is favourable to their position, to the exclusion of giving fair and reasonable consideration to any conflicting medical evidence, perhaps obtained by the employee. In such a situation, a joint medical report may be needed or, as a minimum, further questions should be asked of the medical advisers to understand any difference in opinion and why.
Additionally, employers must not simply ‘rubber stamp’ medical reports/OH advice, especially should the outcome of the report suggest that the employee is not likely to be disabled due to long COVID. For the purposes of establishing disability discrimination, ‘disability’ is a legal question, not a medical one. So, whilst an informed and reasoned opinion of an OH/medical consultant can usually carry good weight, the employer should still be able to evidence that it has:
- considered the advice carefully, alongside any other relevant facts or matters;
- checked that the advice received is sufficiently reasoned and detailed; and
- asked follow-up questions to deal with any queries, inconsistencies, errors and/or unanswered matters.
Asking the correct questions of the OH/medical adviser and providing relevant information, in the first place, will be key to setting a solid foundation upon which to base the above.
Of course, the guidance in this e-bulletin also applies and is important to any medical/OH assessment that an employer obtains in respect of an employee; it is not just applicable to matters concerning long COVID.
As always, if you have any questions or queries about this topic or anything Employment law/HR related, please do not hesitate to get in touch with a member of our team.
