What does the NHS long Covid pay decision mean for employers?

In light of recent news that healthcare staff face sick pay reductions because of a change in policy, People Management provides an update on the state of play with long Covid

by Mahalia Mayne 2 February 2023

Thousands of NHS employees across the UK may face wage decreases as a result of a change in Covid sickness policy.

According to the BBC, modifications made to the special sick pay rules put in place during the pandemic for NHS workers had previously entitled those unable to work as a result of long Covid to receive full pay. But this is set to change.

This decision mirrors that of the government's changes to statutory sick pay (SSP) in March last year as part of its ‘Living with Covid’ plan. While this did not apply to long Covid, it reverted SSP back to normal rules – meaning those with Covid would only be eligible from day four, rather than day one, of their time off work. This also stripped away the SSP rebate scheme for SMEs and additional payments for low earners.

While the actual number of people in the UK who have long Covid is unknown, data from the Office for National Statistics revealed that, as of 4 December 2022, an estimated 2.1 million people in the UK were experiencing self-reported long Covid. Of those, around nine in 10 (87 per cent) first had Covid at least 12 weeks previously, and more than half (57 per cent) reported experiencing long Covid symptoms for at least one year.

But what progress have UK businesses made in supporting employees with long Covid, alongside interpreting sick pay and whether it is a disability?

According to Acas guidelines, the usual rules for sickness absence and sick pay apply when an employee is off work because of long Covid, and the government advises that employees will be eligible for SSP.

If SSP ends, employees may then have to apply for universal credit or employment and support allowance (ESA), which will help with living costs and support people to return to work. If employees significantly struggle with everyday tasks, such as washing and dressing, they can also apply for a personal independence payment (PIP).

Samuel Mather-Holgate, managing director at Mather and Murray Financial, says that as long as a GP provides a sick note, this should be sufficient for employees to meet the requirements for SSP, but she urges employers to be "flexible", especially during the current economic situation. "If a worker is suffering from long Covid but is willing and able to work reduced hours from home this should be explored, as they should be on a higher income than SSP," says Mather-Holgate, adding that he doesn't think PIP would be "appropriate" as we don't know if long Covid is a permanent disability.

"It is likely ESA and/or universal credit would be more appropriate, but hopefully these cases will be few and far between as employers look to support their workers back into the workforce rather than on to benefits," he says.

Helen Snow, partner at Geldards, says that since long-term sick days are regularly taken by workers with long Covid, a business should handle this scenario just like it would any other long-term sickness situation. She cites the legal definition of a disability as a physical or mental impairment that has a "long-term and substantial adverse effect" on a person's ability to engage in typical everyday activities.

The inherent difficulty for employers that have long Covid-related absences is that it is not a single diagnosis, but rather a group of symptoms – such as fatigue, cognitive difficulties and muscle pain – that could amount to a disability under law, but as the condition varies from person to person it is hard to classify.

Last year, the Equality and Human Rights Commission said long Covid was not among the conditions listed as being automatically a disability under the Act. The watchdog stated that it "cannot say that all cases" would be protected and that it would be up to specific courts or employment tribunals to determine if a person's long-term Covid symptoms constituted a disability on a case-by-case basis.

Fudia Smartt, partner at Spencer West, says many long Covid sufferers are likely to fit the criteria of disability, but that even "if they can prove they are disabled, this does not ensure they will be successful in challenging the decision to lower contractual sick pay on the grounds of disability discrimination".

"One wonders if NHS employees will be successful in asserting that their cases are exceptional, in light of the pandemic and the risk these staff members took in caring for the public," she adds, explaining that, alternatively, "staff may need to consider pursuing personal injury claims to obtain compensation".

This was evidenced in the landmark employment tribunal of Burke v Turning Point of Scotland, which found that the long Covid symptoms suffered by Mr Burke amounted to a disability.

The impact on the workforce at a time of high economic inactivity is evident, as a poll by the CIPD and Simplyhealth discovered that more than two fifths (46 per cent) of organisations had employees who experienced long Covid symptoms in the last 12 months, with a quarter (26 per cent) now listing the condition among their main causes of long-term sickness absence.

Lesley Macniven, founding member of Long Covid Support, says it has now become an "economic problem" as thousands of workers are afflicted with long Covid, and that certain sectors, such as health and social care, education and local government, can "ill afford to lose people to sickness".

A survey from Indeed last year revealed that 78 per cent of people with long Covid needed to cut back or change their work, and 98 per cent of long Covid sufferers said the condition had limited their ability to work – suggesting that the condition could be one of the main factors behind widespread labour shortages in Britain.

Rachel Suff, senior wellbeing adviser at the CIPD, says organisations that have "good people management practices are best placed to enable employees to thrive" when managing a long-term health condition such as long Covid.

"Good practices include inclusive recruitment and assessment processes, training and support for line managers to protect and promote health and work, as well as access to information and support through multiple channels," she says.

Meanwhile Alan Lewis, employment partner at Constantine Law, says HR should have a flexible approach to those suffering, and should consider what "reasonable adjustments could be made so that any provision, criterion or practice, or physical feature of the employer's premises or a failure to provide an auxiliary aid, does not place the employee at a substantial disadvantage" and seek a medical opinion if they believe the chronic illness meets the requirements for a disability under the Equality Act.

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