Tag Archive for: Disability

Long COVID – How Can Employers Best Support and Manage Staff?

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As long COVID has recently been ruled as a disability, we consider the implications for your workplace sickness management processes. 

Although we are approaching two and a half years since the pandemic hit the UK and living and working with COVID has become routine and common-place, long COVID remains a relatively new condition, with its effects still being properly researched. For employers this is likely to be a cause for concern, given the potential impact on the workforce.

In research conducted by the Chartered Institute for Personnel and Development (CIPD) and Simplyhealth at the beginning of 2022, 46% of surveyed organisations had employees who have experienced long COVID in the last 12 months. Whilst this number will continue to fluctuate, it is potentially a significant number of employees who will be trying to work whilst coping with long COVID symptoms. 

There is an expectation that more long COVID cases will come to tribunals, following the recent preliminary ruling in a Scottish tribunal case that long COVID did meet the definition of disability.  

What Is long COVID?

It is described as the persistence or development of symptoms attributed to COVID-19, lasting more than twelve weeks after initial infection. 

Common symptoms include: 

  • extreme tiredness, difficulty sleeping
  • shortness of breath
  • chest pain or tightness, heart palpitations
  • problems with memory and concentration
  • dizziness
  • joint pain, pins and needles
  • depression and anxiety
  • tinnitus, earaches
  • nausea, stomach aches diarrhoea
  • loss of appetite
  • a high temperature
  • cough, sore throat
  • headaches
  • changes to sense of smell or taste
  • rashes

People can experience the effects of long COVID for weeks, months and even years. Symptoms can come and go over time, sometimes getting better and sometimes getting worse. This means it can affect someone’s ability to work and/or cause them to have higher rates of absence.    

With the potential to last beyond twelve months and to have an adverse effect on day-to-day activities, this is where the question of disability comes in. Long COVID has been found to more severely affect older people, ethnic minorities and women.

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Effective Steps for Employers

With inconsistent performance and increasing absence, it’s easy to see how an escalation to capability processes could happen for an employee suffering with long COVID. 

As with any complex sickness issue, it’s important to seek expert medical advice before rushing into a management decision. This is where an occupational health referral can really help but ensure that you ask the right questions:

  • Is there an underlying medical condition?
  • How might it affect the individual’s performance of their duties?
  • What reasonable adjustments could be made in the short or long term? 
  • Whether or not the individual is likely to be covered by the Equality Act?

For this last question, the advice may not always be conclusive but the focus here should not be on determining whether an employee’s condition is a disability, but on getting them back to working at their best. This is where the reasonable adjustments – such as changes to hours and responsibilities, place of work – can really help.  

An Individual Response

With individuals being affected in different ways by a vast array of possibly fluctuating symptoms, a ‘one size fits all’ approach to absence management is unlikely to be possible. It’s therefore important to look at each case individually.

As well as considering and discussing any occupational health recommendations, employers should engage with individuals directly to understand what support they need during any absence and in their return. 

Ensure regular meetings – both during their absence and once they return to work – to provide an opportunity for them to raise any concerns they may have. Checking in regularly upon their return will not only provide positive dialogue and focus on their wellbeing but will also allow you to table any concerns re. workload and productivity early. Along with any adjustments this will demonstrate the support put in place by an employer.

What Else Can Employers Do?

Review existing absence management policies for employees with long term health conditions to ensure these are flexible to respond appropriately. Policies provide guidance but it may be necessary to tailor these to individual situations, for example considering the viability to revise absence thresholds. 

Utilise occupational health assessments as appropriate to discuss how and when an employee can return and what reasonable adjustments can be put in place to support their return, such as hybrid working, flexible hours, adjustment to responsibilities.

Consider refresher training for line managers on absence management processes, in particular the  use of occupational health referrals. Don’t assume your managers are confident in dealing with these situations as some may have had little or no experience of them and may be anxious about getting it right.

Similarly, you might want to provide awareness training for managers to increase their understanding of long COVID and its potential impact on employees and linking this up with absence management processes.

Looking Ahead

The number of people experiencing ongoing symptoms following a COVID-19 infection will likely increase over the coming months and years, and with that a possible increase in unfair dismissal claims. The argument for proactively supporting individuals to return to, and remain at, work is therefore strong. 

How employers deal with such cases could impact not only dismissal claims, productivity, recruitment and training costs of replacing exiting employees but also employee engagement. With competition fierce for skilled employees, employers who demonstrate supportive and positive management of employee wellbeing, including long COVID, will have a better chance of managing turnover and retaining employees.

If you have any questions about absence management, occupational health referrals or other HR queries, please contact Sue Meehan Boyes in our team on 07384 468797.

Making Your Workplace More Inclusive for Disabled Staff

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On 12 March, the Business Disability Forum (BDF) published guidance to help employers improve access for disabled workers.

What Does the Guidance Say?

The first part of the guidance, Access for all – Creating inclusive global built environments, sets out what an inclusive built environment may look like and sets out the importance of creating an inclusive environment for both disabled staff and businesses. It also looks at who to involve in this process and some of the challenges that employers may face.

The second part of the report looks at practical issues to consider when designing a more inclusive and accessible built environment.

The built environment refers to the interior of a building and will include things like entrances, stairs and lifts, lighting, seating areas, offices, catering and bathrooms.

The report suggests that thought should be given to how the people using the building really ‘use’ the environment, and that this must include those with disabilities. This will involve thinking about how easy it is for people to use the desks, the entrances, the toilet facilities and how easy it would be to enter and leave the premises, including in an emergency. 

The report encourages employers to consider the whole range of possible disabilities, including not only physical disabilities but also mental health conditions and sensory conditions. Aiming for inclusion in this context focuses on the built environment being able for all people to access and use spaces without specific adjustments being needed on an individual basis.

Why Is This Important?

The report suggests that a focus on the accessibility of built environments of workplaces will help to:-

  • attract and retain staff
  • attract customers and clients
  • reduce costs of high absence rates and high staff turnover
  • enable an organisation to become more energy and time efficient

The report gives some useful pointers for those working in HR to consider when thinking about the built environment of their organisation. 

To discuss these issues further, or for specialist guidance on issues relating to disability in the workplace, please contact Caitlin Anniss in our team on 07909 683 938.

When Does an Employer Have Knowledge of an Employee’s Disability?

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The recent case of Lamb v The Garrard Academy highlights how complicated the question of employer knowledge around an employee’s disability can be.

The Legal Background

Employers have a duty to make reasonable adjustments for employees who are disabled. Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities.

The duty to make reasonable adjustments is triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability.

The Facts

Ms Lamb, a teacher, began a period of long term sick leave in February 2012. In March 2012, she raised a grievance with the school in which she complained about two incidents involving the Deputy Head.

Ms Lamb’s grievance was initially investigated and upheld by the school’s Head of HR. However, the Head of HR’s grievance report was found to be inadequate by the school’s Chief Executive, Mrs Elms. Mrs Elms did not read supporting documentation appended to the report. In July 2012, Mrs Elms met with Ms Lamb to discuss the investigation and, in this meeting, Ms Lamb disclosed that she had post-traumatic stress disorder (PTSD) due to events from her childhood.

Despite initially saying she would personally deal with the grievance, Mrs Elms later commissioned a new investigation by the school’s new Head of HR. The second investigation was eventually concluded in January 2013 and rejected Ms Lamb’s grievances.

Ms Lamb brought a claim for failure to make reasonable adjustments. The alleged failures related to the way in which the investigation was handled, including that the second investigation report should have been completed before the end of the Summer term and that Mrs Elms should have read the supporting documentation to the original report.

The Decision

Ms Lamb’s initial sick notes in February 2012 cited reactive depression. In November 2012, the school obtained an Occupational Health report which confirmed that Ms Lamb suffered from PTSD and that she had been suffering a period of symptoms since September 2011.

The school accepted that Ms Lamb was disabled due to PTSD but argued that it did not have knowledge, and neither could it reasonably be expected to have knowledge, until the Occupational Health report was obtained in November 2012. Therefore the duty to make reasonable adjustments was not triggered until this time. An Employment Tribunal  accepted this.

On appeal, the Employment Appeal Tribunal (EAT) held that the school had actual knowledge of Ms Lamb’s disability mid-July 2012 when she disclosed her PTSD to Mrs Elms and that it ought reasonably to have known that she had a disability by early July 2012. The EAT therefore held that the duty to make reasonable adjustments arose in July 2012.

The EAT held that the school should have sought to remove the disadvantage to Ms Lamb by properly reading the first investigation report, including the supporting evidence, and building upon that original report so that the grievance investigation was concluded before the end of the Summer term.

Best Practice

This case demonstrates that employers need to be mindful of any information (whether oral or written), which indicates that an employee may have a disability. Such information may give employers actual knowledge of disabilities or give rise to reasonable expectations that they should have that knowledge.

Where an employer has knowledge of a potential employee’s disability, it should consider obtaining Occupational Health advice to better understand the employee’s health condition and to assist in discharging any potential duty to make reasonable adjustments.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Voluntary Reporting on Disability, Mental Health and Wellbeing

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In October 2017, “Thriving at work: the Stephenson/Farmer review of mental health and employers” was published.

Following this, the Department for Work and Pensions and the Department of Health and Social Care have published a framework to support employers to voluntarily report disability, mental health and wellbeing in their workforce.

The framework is entirely voluntary in nature and aimed at larger employers with over 250 employees. However, smaller employers are also encouraged to engage with the framework as well.

The purpose of the framework is to drive transparency in organisations. Employers are encouraged to provide a narrative explaining the action taken to recruit and retain disabled employees and provide support in relation to mental health and wellbeing in the workforce.

The Stephenson/Farmer review suggested that poor mental health was costing employers between £33 billion and £42 billion per year (namely in relation to sick leave, staff turnover and impact on productivity).

It appears that the issues of disability and mental health and wellbeing is increasingly under the spotlight and it is possible that reporting will become mandatory in the future (although this is not suggested at present). Employers may decide to voluntarily report as a point of best practice and to demonstrate transparency and a commitment to addressing issues arising out of disability and mental health in their workplace. Further guidance regarding reporting is to be published shortly.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR.