Member Article

The impact of the pandemic can be seen across all sectors of society but those who are disabled have been particularly affected, not least because employees with an underlying disability are likely to have been identified as clinically extremely vulnerable and told to shield for considerable parts of the last year. Being away from the workplace and separated from colleagues has left many feeling insecure.

Restructures and disabled employees

Indeed, as a result of the pandemic, we have seen many employers having to re-consider how they operate and implement cost-saving measures. What are the possible implications for disabled employees who are shielding and/or on furlough?

The ONS has reported that a higher proportion of disabled employees have been made redundant than employees who are not disabled during this pandemic. Between July to November 2020, 21.1 per thousand disabled employees were made redundant, compared to 13.0 per thousand employees who are not disabled.

Such statistics suggest that employers are seeking to retain those employees who can cover a range of roles, given many employers are having to save costs in order to survive.

Such pressures may also mean that employers have less flexibility in the roles available and as a result be less able to accommodate reasonable adjustments for disabled employees. Although the Equality and Human Rights Commission (“EHRC”) has highlighted that employers still have legal obligations to ensure the decisions they make in response to COVID-19 do not directly or indirectly discriminate against employees with protected characteristics, the scope of what is reasonable for an employer to do may well have diminished for those employers significantly impacted by the pandemic.

When considering any proposed redundancy decisions, employers should be mindful of the risk of discrimination if disabled employees are selected for redundancy. The EHRC has highlighted that the following criterion which might be used as part of a redundancy scoring process could increase the risk of disability discrimination claims:-

• unpaid leave days taken;
• productivity or output during the pandemic;
• sick leave taken during the pandemic;
• who has previously been furloughed; and/or
• who is working part-time.
  
  

The above criteria could indirectly discriminate against disabled employees who may have taken time off due to COVID-19, for example because they were shielding. In such a situation, the EHRC advises employers to consider whether to adjust their redundancy criteria for example by considering criterion against the period prior to COVID-19. It is therefore important that employers undertaking a restructuring exercise, carefully consider issues which may impact disabled employees to avoid possible litigation being raised in the Employment Tribunal.

The role of OH

Another impact of the pandemic is the disruption it has caused to internal processes, such as in the assessment of disabled employees. Usually referrals to Occupational Health (OH) are commonplace, to assist employers in facilitating a safe return to work. The lack of face to face meetings may well have impacted on this process, certainly at the start of the pandemic.

Whilst telephone OH consultations took place prior to the pandemic, inevitably they have increased as the lockdowns have continued.

Even when we “return to normal”, our view is that this trend will continue with face to face OH consultations being rare (where on-site OH facilities are not being provided). To assist with obtaining as full an assessment as possible, if remote consultations are carried out we advise employers to ask their OH provider to conduct a video call with the employee rather than just a telephone consultation if at all possible. The up-side to conducting video assessments is the same OH professional can carry out an employee’s assessments and the employee does not have to travel and their symptoms can be managed more easily but at the same time, the OH professional can see the employee and how they are managing.

Disability and Long COVID

One of the unfortunate consequences of COVID-19 has been the impact of ‘Long COVID’. The Office for National Statistics (“ONS”) reported that over a 4 week period ending 6 March 2021, an estimated 1.1 million people in the UK confirmed they were experiencing Long COVID (i.e. symptoms persisting for more than four weeks after the coronavirus episode that are not explained by something else). The ONS has said the rates of self-reported Long COVID were greatest in people aged 35 to 69, females, those living in the most deprived areas, those working in health or social care and those with a pre-existing activity limited health condition.

Whilst currently there is no universally agreed definition of Long COVID, according to the NHS, common symptoms may include, extreme fatigue, insomnia, shortness of breath, problems with memory and concentration amongst many more.

Given the increased prevalence of Long COVID, should employers be concerned that it could amount to a disability? The short answer is yes. Under the Equality Act 2010 (“EqA”), a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. If the Long COVID symptoms, described above, have a substantial adverse impact on the employee carrying out day to day activities and the impairment has lasted or is likely to last for 12 months then it could fall within the definition of a disability under the EqA and the employee should not be treated less favourably as a result of that condition, and the duty to make reasonable adjustments would be triggered.

We recommend that employers conduct individual risk assessments with employees who are experiencing Long COVID symptoms and consider making a referral to an OH professional to advise on how to facilitate an employee’s return to work or provide on-going support. Such assessments could also take place remotely by filming the work-station/conditions and/or the employee agreeing to be filmed and providing the footage to OH.

The benefit of engaging with OH at an early stage is to consider what adjustments may reasonably be put in place for a disabled employee to enable them to continue in work. Reasonable adjustments could take the form of continuing to work from home, shortened hours or longer and more frequent breaks. Given the way employers have adapted to remote and flexible working, they could use the experience of lockdown to create a strategy for more flexible workplaces for disabled employees.

Summary

It is important that employers carefully consider the impact that COVID 19 may have had (and which it may continue to have) on employees who have a disability. Decisions around a disabled employee’s employment should be carefully managed taking into account up-to-date medical advice via OH and carrying out appropriate risk-assessments with employees. Employers should also continue to engage in regularly communicating with disabled employees to see what further adjustments may be required, especially to support a return to the office in the coming months and appropriate training should be provided to managers to help support employees who may have a disability.