This article is provided by BRC Associate Member Womble Bond Dickinson.

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With an autumn COVID-19 wave potentially underway and concerns over a bad flu season this year, retailers will be concerned about the impact of staff absences.  Alongside the risk of short-term absence issues, the number of employees with long COVID is also increasingly becoming a challenge for retailers.

What is the scale of long COVID?

In July 2022 the Office for National Statistics reported that an estimated two million people in the UK had self-reported symptoms of long COVID continuing at least four weeks after a first suspected infection.  Moreover:

  • 4 million experienced symptoms of long COVID at least 12 weeks after an infection; and
  • of those, as many as 800,000 still experienced symptoms one year on from infection.


What should retailers know about long COVID?

What you may not have appreciated is that the 800,000 people with long COVID symptoms could attract the protections of disability discrimination law (although not all will be of working age).

Also, a survey we conducted on a recent HR webinar indicated that 46% of attendees had at least one employee absent from work due to long COVID symptoms.

While retailers will be concerned about absence levels, their approach should be balanced with diversity and inclusion and staff welfare considerations.  So, it is important for retailers to consider:

  • legal issues around long COVID and whether it is a disability
  • practical steps retailers can take to manage the welfare of staff with long COVID, and
  • how to deal with shorter COVID-19 related absences.


Long COVID and disability law

The key legal consideration will often be whether long COVID symptoms amount to a disability in law. 

If not then, in principle, a retailer could deal with COVID-related absences under its normal long term absence procedures; and shorter term COVID absences could be dealt with under any existing short term management policy. 

However, even then, it may be prudent to take a cautious approach given the exceptional nature of the pandemic.  For example, it is possible that an employment tribunal could find a dismissal for excessive absence to be unfair if one of the absences was due to COVID-19, particularly if that infection may have been contracted at work.  The facts of any cases in which employers intend to take disciplinary action must therefore be considered carefully.

Whether long COVID is a disability was considered in a recent employment tribunal decision (Burke v Turning Point Scotland).  The tribunal concluded that Mr Burke's symptoms (described as post-viral fatigue) were a disability.  Cases are likely to be fact specific and the tribunal's conclusion does not automatically mean other employees with long COVID will benefit from the same protection, but retailers should bear this tribunal decision in mind as it sets a precedent.

Generally, the focus will be on the impact of someone's symptoms on their day-to-day activities and whether their condition is "long term" (ie lasted or is likely to last 12 months, or is likely to last for life).

If someone's condition has improved to the point where they experience few symptoms in less than 12 months and there is no expectation of a recurrence then they will not have a disability.  However, how do you predict whether someone's symptoms are likely to last 12 months or recur?

Also there is a wide range and varying severity of long COVID symptoms - some could affect day-to-day activities whereas others may not. Therefore, whether or not long COVID is a disability varies depending on someone's own individual circumstances.

So how should retailers manage long COVID?

Whether or not long COVID is a disability, retailers should recognise that the pandemic continues to affect all employees and that some may experience debilitating symptoms weeks or months after infection. Good employers should therefore support employees experiencing such symptoms. The key practical steps for retailers are:

  • Openness and transparency: Encourage employees to speak up if they have long COVID symptoms. If employees know they will be supported, they may share this information, so retailers can help them, and reducing the risk of later disputes.
  • Listen: Listen to these employees to understand how they are affected and understand what adaptations might help them at work. 
  • Be flexible: Regardless of whether or not there is a legal duty to make reasonable adjustments, adaptations that help an employee work well make good business sense. While hybrid or remote working would not be options for store-based staff, there may be simple steps retailers can take to help affected employees feel supported and return to work.
  • Take advice: Make full use of occupational health services where available, and ensure that advice focuses on the effects of an employee's condition and what can be done to alleviate these at work. Retailers should also ask follow up questions if they need more information from occupational health to make decisions. If an employee's symptoms have a significant impact on their day-to-day lives, with no sign of imminent improvement, it may be safest to work on the basis that they are disabled.
  • Consider your rationale for rejecting any requests: There may well be cases where occupational health advisers consider that long COVID symptoms are unlikely to amount to a disability and employers want to rely on that advice. If so, it may still be best to consider the reasonableness of any recommended adjustments, and only reject requests if there is a good argument as to why a particular step is not reasonable.

Retailers that focus on employee wellbeing and diversity and inclusion will of course want to explore all reasonable options to accommodate long COVID sufferers.

There may be some circumstances in which retailers have no choice but to conclude that, based on the available medical evidence, there is no prospect of an employee returning to work within a reasonable timescale and that there are no reasonable adjustments that can be made.  In principle, a retailer could proceed with an ill-health capability dismissal and it may be possible to defend any resultant disability discrimination claim on the basis that dismissal was a "proportionate means of achieving a legitimate aim".  However, to rely on that defence, it would be important to clearly document the consideration given to reasonable adjustments and any alternatives to dismissal that have been considered. So retailers should not take these steps lightly, and should consider the wider impacts of taking such steps, like the effect on staff morale and reputational risk.

What about short term absences?

With risks of an autumn or winter COVID wave causing staffing challenges, particularly over peak periods, what practical steps could retailers take to help manage absences?

  • Pragmatic approach to absence policies: rigid approaches to provisions in absence policies that are designed to discourage absenteeism could result in additional staffing pressures if applied in COVID-19 cases.
  • Continued communications: updates to staff over infection risks may assist. If staff can be encouraged not to come to work if they have symptoms of any respiratory disease, this lessens the risk of other employees becoming infected.
  • Review sick pay schemes: There is a difficult balancing act in a cost of living crisis and retailers will be under significant cost pressure. However, if sick pay policies have the effect of encouraging staff to work when unwell (because they cannot afford not to), then that risks leading to further absence issues.


Supporting Disability

20% of working age adults in the UK have a disability (8.4m people) with many of these disabilities being non-visible. As such, in common with many retailers, supporting staff with disabilities is of vital importance to WBD.  WBD launched its Disability Network during National Inclusion Week 2021, to support everyone at WBD affected by disability or long term health conditions. You can find out how they have been raising disability awareness, making positive contributions towards fostering a working environment based on mutual respect, inclusiveness and equal opportunities in WBD's Responsible Business Report 2022. 

Dan Fawcett is a Legal Director in the Employment team at WBD, and Michelle Essen is a Legal Director PDL in the Construction team as well as being Chair of WBD's Disability Network. Both would be pleased to connect with any readers on any questions they may have about employment (Dan) or construction or disability networks (Michelle).