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EHRC says not all long covid cases fall under the definition of disability

Makbool Javaid, Partner - Simons Muirhead & Burton

The EHRC has issued a statement on ‘long Covid’, disability and the Equality Act saying “there continues to be discussion of the various symptoms related to Covid-19 that are often referred to as ‘long Covid’ and whether they would constitute a disability under the Equality Act.

“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act.

“This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This will be determined by the employment tribunal or court considering any claim of disability discrimination.

“To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”

Disabled campaigners said its statement suggested that those with long Covid should not be protected under the Equality Act. Catherine Hale, founder and director of Chronic Illness Inclusion (CII) said the tweet was “inaccurate and misleading”.

She said: “Whether this was due to incompetence on the part of the staff member writing the tweet, or a deliberate message to undermine the rights of disabled people living with long Covid to support and protections under the law, is not clear. Either way it’s alarming.”

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