We're aware that some schools and colleges have been asked to sign up to a 'joint protocol on the management of long-covid' which has been agreed between the main teaching unions who want to ensure that there is a consistent approach across the sector.
What does the protocol say?
It suggests that staff suffering from long-covid should be treated more generously than those suffering from other medical conditions on the basis that it's a 'new and debilitating condition for which treatments are still emerging ... and its implications are not yet fully understood'.
Some of the principles reflect good practice and are uncontroversial, but others are a real departure from how organisations typically deal with long-term or intermittent, short-term illnesses.
Schools and colleges that sign up to this are agreeing to temporarily suspend some elements of their sickness absence schemes by:
- Agreeing not to impose any disciplinary or absence management sanctions for anyone absent from work due to long-covid
- Paying employees on long-term sick leave for a minimum of 12 months (regardless of length of service) and agreeing to review their pay at the end of that period
- Paying sufferers during any period where adjustments are being discussed and recording their absence as either disability leave or medical suspension rather than sick leave
The protocol also requires schools and colleges to:
- Undertake 'robust health and safety risk assessments' into their working environment, work activity and individual factors that may put them at risk of harm
- Take steps to ensure the employee can return to work by, for example, agreeing a phased return to work on full pay, amending their duties or being more flexible about how or where they work
It asserts that managing long-covid in a sympathetic and supportive way is wholly consistent with the approach advocated Acas (which you can read here). It's certainly true that Acas acknowledge that the unpredictable nature of long-covid can leave employees feeling isolated and in need of support. But it's guidance doesn't say anything about paying staff when they are ill or recommend that employers change their usual sickness absence procedures.
Which unions have signed up to it?
Six unions have signed up to the protocol. These are: NEU; NASUWT; Unison; GMB; Unite; ASCL; NAHT and Community.
Do we have to agree?
No. However, any union that you recognise for collective bargaining purposes in respect of employees' terms and conditions of employment could raise it under that process. If they do, you'll need to follow your usual processes to determine it.
Long-covid is not an infectious disease and, in our view, shouldn't be treated as one.
What are the symptoms of long-covid?
The NICE guidelines were last updated in November 2021 and include a wide range of symptoms; not all of which are completely debilitating (even on an occasional basis). Symptoms can impact the respiratory, cardiovascular, neurological, gastrointestinal, musculoskeletal, dermatological and ear, nose and throat systems. Some psychological/psychiatric symptoms are also included and there's a 'general category' which includes fatigue, fever and pain. A number of additional common symptoms have also been added including hair loss, nasal congestion, symptoms of post-traumatic stress disorder, weight loss, vomiting, visual disturbances and mobility impairment.
The guidelines indicate that many people suffer from a 'constellation of symptoms'.
Medical professionals will only diagnose someone with long-covid if they have suffered from symptoms for at least 12 weeks and usually, after they have ruled out any other obvious causes. However, NICE recommend that they consider symptoms presenting earlier to ensure that these are assessed as early as possible.
Is long-covid a disability?
Anyone that has a disability is protected from discrimination. Whether someone is disabled is a matter for the tribunal and so an employer is in a difficult position of having to take a view on whether to treat someone as a disabled person when it may not be clear. Occupational health can help to give a view but this is not determinative. Legal advice can also assist.
Disability is any physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Many of the symptoms of long-covid are likely to meet this description.
An impairment will be regarded as 'long-term' if it has already lasted, or is likely to last, at least 12 months. There's very little medical clarity about how long the physical effects of Covid are likely to last and, ultimately, this question would have to be answered by an employment tribunal on the specific facts. But, it's probably safer to assume that anyone who is still suffering from the effects of Covid months after they were infected is likely to be able to demonstrate that it's long term.
Is it a reasonable adjustment to give disabled staff full pay when they are ill or working shorter hours?
It follows that if you employ someone with long-Covid who is disabled, you will need to make reasonable adjustments to help them remain in work or return to work. This might include adjusting someone's hours, giving them the opportunity to work flexibility or limiting what they do either on a temporary or permanent basis. These are included as options in the protocol.
But, in most cases you do not have to provide long-term pay protection for someone who is unable to work at all, or has agreed to work shorter hours.
Do we have to adjust our absence management procedures?
You need to treat disability related absences with care. You are entitled to manage ill health and absence and a disabled employee can't expect to be removed entirely from the scope of your absence management policy. Some policies already include provision to offset disadvantage to people with disabilities. If yours doesn't you should consider what adjustments you can make which might, for example, include extending the trigger points and allowing a higher level of absence before you start taking action.
Even if adjustments are made, the level of absence may reach the point where you can reasonably dismiss on the grounds of capability. However, you would need to obtain up to date medical evidence first, discuss this with the employee and warn them that they may be dismissed. Take advice if you're not sure.
Please contact one of our employment education specialists; Helen Dyke (colleges) or Jenny Arrowsmith (schools) if you need any help responding to these sorts of requests.