REWARD
from long Covid should be classed as having a disability under the Equality Act 2010. In this case, Burke v Turning Point Scotland, the employee had Covid in November 2020. While Covid-positive, he experienced mild flu-like symptoms. However, following this, he suffered from ongoing extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches, causing him to take a prolonged period of sickness absence. Two occupational health assessments were conducted as part of a formal medical capability process from the employer. The employee didn’t return to work during this time and was ultimately dismissed on the grounds of ill-health in August 2021. The employer highlighted there were no alternatives or adjustments which could be implemented to facilitate a return to work in the near future. The ET concluded that, although he had good days and bad days, overall, his long Covid (diagnosed as post-viral fatigue syndrome by his GP) caused a substantial and long-term adverse effect on his ability to complete day-to-day activities. In deciding this, the ET considered his inability to walk to the nearby shop to get a newspaper, and the fact he needed help with cooking, ironing and shopping. He also had difficulty concentrating or reading for any length of time, and his sleep was disturbed. Therefore, he was deemed to be disabled for the purposes of the Equality Act. The ET will now separately consider whether he was unfairly dismissed and / or subject to disability discrimination. However, it’s important to note that long Covid isn’t among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis. As such, not all cases will meet the required tests. Employers should, however, remember that any health condition, including long Covid, may be considered a disability under the Equality Act 2010 if it’s long- term (typically lasting one year or more), and the symptoms cause a substantial, adverse effect on the employee’s ability to carry out normal day-to-day activities. It’s best to hold regular welfare meetings with anyone who has experienced, or is experiencing long Covid, or any other long-term medical condition. This is to understand how they’re feeling and get an update on their
health. This might include detail of their progress, what their doctors are saying and what treatment they’ve received. Employers are then in a better position to understand how to support the employee with reasonable adjustments. Common adjustments in this situation incorporate: ● a phased return to the workplace ● reduced duties ● regular breaks ● home working or hybrid working arrangements ● amended absence triggers ● flexibility with last-minute absences. Employers should also keep in mind that long Covid will affect everyone differently, so adjustments must be personalised to each employee, in line with their specific needs. Adopting a one- size fits all approach in this situation would prove ineffective for both the employee and employer. Long Covid will affect everyone differently, so adjustments must be personalised to each employee, in line with their specific needs Ethical veganism not always a protected philosophical belief The Equality Act 2010 prohibits discrimination at work against anyone on the grounds of their religious or philosophical belief. In early 2020, the ET considered the case of Casamitjana v League Against Cruel Sports. It concluded, for the first time, that the employee’s belief in ethical veganism amounted to a philosophical belief, so was therefore protected under the Equality Act. However, the recent case of Free Miles v The Royal Veterinary College decided that an employee’s ethical veganism didn’t amount to a philosophical belief. Here, the employee was dismissed for reasons connected to her involvement with an animal rights group that endorsed law breaking and participating in trespass and theft. As a result, she raised
claims for direct and indirect philosophical belief discrimination, arguing that her ethical veganism included a moral obligation to take positive action to reduce animal suffering. The ET found that a belief which involved acting in contravention of the law wouldn’t be worthy of respect in a democratic society, so failed the necessary tests to be protected as a philosophical belief under the Equality Act 2010. The ET stated that, had her belief in ethical veganism followed that of Casamitjana’s and been limited to not eating, wearing, using, experimenting or profiting from animals, and if the ‘positive action’ she took was lawful, it would have had no reservation in concluding that it was a philosophical belief. When considering the scope of a belief, the tribunal will apply several difficult tests. To be successful, the belief must be genuinely held, not an opinion or viewpoint, and have a substantial impact on human life and behaviour. It must be cogent, coherent, serious and important, and worthy of respect in a democratic society, by ensuring human dignity and non-confliction with people’s fundamental rights. A philosophical belief should have similar status to a religious belief, but it doesn’t need to be shared by others, nor does it have to be based on science. Other philosophical beliefs which have successfully met the tribunals’ tests include: ● a belief in climate change and the environment ● pacifism ● Scottish independence ● Spiritualism ● the importance of not lying. However, each case is assessed on its own merits, so what is a protected belief for one person, may not be for another, as seen in the comparison of Casamitjana and Free Miles. Therefore, where an employee alleges unfair treatment due to a belief they hold, it’s important the issue is fully investigated and appropriate allowances made. Otherwise, the employer may face wider risks of discrimination claims being raised. This being said, where the belief contradicts one or more of the above tests, it will unlikely be protected under the Equality Act, so the employer has more flexibility to continue with any employment processes (e.g. disciplinary), as long as there still remains fair reason to do so. n
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| Professional in Payroll, Pensions and Reward |
Issue 83 | September 2022
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