For further detailed advice on what to do in cases of ill-health capability, please contact our employment law experts on 01332 226 149 or complete the form below.
Acas has recently published guidance for employers in response to the growing number of employees who have reported suffering from symptoms of COVID-19 long after the initial infection.
Employment|27 May 2021
Insight
Following our recent article on long COVID (which can be found here), our employment experts summarise the recently published long COVID guidance from Acas.
Whilst long COVID is still not a medically recognised condition, the symptoms are often reported to be wide-ranging and substantial.
As the Acas guidance notes, there is a real risk that long COVID symptoms could affect someone’s ability to work or cause them to take sickness absence. The guidance also notes that there is a chance that the condition (or associated symptoms) might be classed as a disability under the Equality Act 2010. The guidance goes further to suggest that long COVID may more severely affect older people, ethnic minorities, and women and that, subsequently, employers should take this into account when dealing with employees suffering from long COVID to avoid discrimination on the grounds of age, race, or sex.
It is therefore vitally important that employers know how to recognise the signs that somebody is potentially suffering from long COVID and to respond appropriately.
The guidance breaks down how employers should respond to symptoms of long COVID including what they should be doing whilst the employee is off sick and what they should be doing when the employee returns to work. In summary, the recommendations made in the guidance are similar to those recommended for any employee who is off sick either in the short or long term.
Whilst the employee is off sick, Acas recommends that employers should agree on how and when to make contact during absence; make sure work is covered appropriately, and discuss with their employees how they can support a return to work, where and when that is possible.
Support that employers might be in a position to provide could include a referral to occupational health; making changes to the workplace or to the employee’s working practices (such as reduced hours or allowing them to work from home); putting in place a phased return to work, and discussing with the employee what they would like to tell other staff members about their illness.
If, upon the employee’s return to work and once all reasonable support has been put in place, the employer feels that the employee is no longer capable of performing their role (either due to performance or absence issues) the employer should look to instigate their capability procedures.
At each stage of the capability process, the employer should consider whether reasonable adjustments are needed to take into account the effect of long COVID.
Before dismissing an employee on the grounds of capability, employers will need to ensure they have followed their internal capability procedures and they will need to be able to demonstrate that they have made reasonable adjustments as may be required, in order to avoid claims for unfair dismissal and/or disability discrimination.
The full guidance from Acas can be found here.
Schools may find it helpful to review our article on dealing with long term absence in schools.
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