Long Covid: will employees be able to claim compensation?

MPs and peers have pressed for long Covid to be classified as an occupational disease, which could give those suffering with it grounds for a compensation claim. But this might not be a straightforward decision for the government to make, writes Vanessa James, who suggests how employers can support staff with long Covid.

Long Covid is a very new health condition, the symptoms of which are only just becoming known. The long-term prognosis and recovery times remain uncertain.

The Department of Health and Social Care has said the condition could involve 55 different long-term effects with the common ones being breathlessness, headaches, cough, fatigue and cognitive impairment or 'brain fog'.

What is clear is that an increasing number of people who have had Covid-19 are developing these long-term symptoms which are preventing them from working.

Employee rights and entitlements on sickness have not changed since Covid emerged and Covid should be dealt with in the same way as any other sickness in terms of employment rights. As anyone who has experience in addressing the impact of sickness on the workplace will know, it is not a "one size fits all" situation, as the employee's entitlements and rights will depend on the nature of the health issue, its longevity and the impact on the employee's ability to perform their role.

Entitlements

Essentially, an employee who is suffering any long-term health condition (whether that be long Covid or otherwise) will find their employment rights set out in their employment contract, the legislation in relation to protection from unfair dismissal, and the Equality Act, where the health condition qualifies as a disability (some cases of severe long Covid will be a disability under the act).

Initially, an employee with long Covid who is signed off on sick leave will want to know about their pay and this will be in their employment contract. The terms of sick pay will vary depending on the employer. As a minimum, employees are entitled to Statutory Sick Pay (SSP), which is often far less than the individual is normally paid with the current 2021/22 rates at £96.35 per week for a maximum of 28 weeks. Many employed in the private sector will only be able to claim SSP from their employer, including those working in privately run care homes - even if they contracted Covid while at work. NHS staff contracts tend to offer up to a year of full pay as contractual sick pay, so those staff at least have some short-term financial security.

If a person with long Covid cannot work after their sick pay runs out, they will inevitably find themselves in financial hardship.

Compensation

Some MPs and peers have called for compensation for frontline health workers who have been affected by long Covid, and want the condition to be recognised as an "occupational disease".

In terms of entitlement to compensation for industrial injury (which would cover lost income after contractual sick pay runs out as well as payment for pain and suffering), it is not certain whether long Covid will be classified as an occupational disease in the UK in future. Indeed, it has been suggested that the government's decision on this could take more than a year.

Unfortunately, it is not a straightforward assessment, not least because Covid can be contracted in a number of ways, not just in the workplace. It is a fundamental principle of a successful industrial injury compensation claim that the condition is contracted at work (knowns as 'causation') and even though NHS workers have a higher potential exposure to Covid, they could still contract the disease from outside work. There is undoubtedly strong political support for key workers being able to seek such compensation and the government has provided funds to support further research and understanding of long Covid. Even so, it is not expected that this decision will be made quickly.

What should employers do?

Once an employee reports that they have long Covid and need to take sick leave, the employer should first agree how and when to make contact during absences to ensure that appropriate review and support can be provided. There are other practicalities to take care of, such as making sure that the employee's work is covered and consideration is paid to how best to support them with their return to work when they are fit to do so (such as phased return, homeworking or re-deployment to another role).

It is not yet clear how employers will deal with long-term absences due to long Covid, however, if the medical prognosis is that the employee will not be fit to work in the foreseeable future, then it is possible that the employee may find themselves dismissed for reasons of capability. Employers who are hasty in implementing such dismissals will risk claims for unfair dismissal, but such claims, even if successful, will not normally fully compensate the individual for their actual losses caused by long Covid - this can only be done through a successful industrial compensation claim.

This is because unfair dismissal compensation will only award the income you would have lost had you not been dismissed, whereas those who remain too unwell to work at the time of an employment tribunal would not have lost anything as they would have (presumably) exhausted their sick pay provisions by then. Even if they had not been dismissed, they would have received nothing in terms of pay if they could not work.

There will be some employees who have long Covid symptoms but can still do some work, and others who are ready to return after a period of absence. These employees are likely to qualify as disabled under the Equality Act and, as such, the employer will need to look at reasonable adjustments to their hours, place of work (more homeworking assists with fatigue) or amended or light duties.

Research has suggested that long Covid affects people in different ways and so employers seeking to support someone's return to work, or their continuing to work while suffering with the symptoms, should take time to understand the impact on the individual and make assessments on an individual basis.

Until more is known about the condition, its longer-term effects and what options the government might offer employees in terms of financial support, employers should be hesitant in making any drastic decisions to terminate employment contracts. Instead, employers should be mindful to keep up to date with government guidance and refer to the ACAS guidance for managing long Covid.