This individual has a number of employees off for approximately 18 months or longer with long COVID and would normally have terminated in other circumstances but is concerned about the lack of medical precedent surrounding long Covid. Is it a wait and see, because we don't know enough? Or is it just this is an illness like any other, deal with it the same way?

Seamus: I think my view in relation to it is that you do need to be careful when you're dealing with aspects of long COVID. I haven't come across any cases yet where I've seen medical evidence that would say that this is a disability. Often the medical evidence will not be just clear about that. It will say, ultimately, that's up to a judge or a tribunal panel to decide. We always hate to see that.

But it will say sometimes within the reports that this is likely to fall within the definition of a disability set out in the Disability Discrimination Act. But ultimately, they will caveat that by saying that's not their job to decide that.

The two things with long COVID, I think, is that if it is circumstances of long COVID, you certainly should have the benefit of medical evidence in order to link that up and make sure that it is all relevant to and that it relates to COVID that has happened.

The other side of it as well, then, is just in relation to, with long COVID, there can often be an underlying conditions that have been there. And you need to be careful, then, that if there are underlying conditions or disabilities that the employee had, that's going to automatically trigger those protections in relation to that.

But certainly, I think we're in this novel process really of COVID. We're not 100% clear, because we're 18 months into it, maybe a bit longer at this point. I haven't come across any case law or precedents that have been set in relation specifically about dismissal and long COVID.

But I think that we need to use our head in the sense that it is likely that from what we've read . . . And certainly, I did read a lot of articles, newspaper articles, and media articles about long COVID, and there's no doubt that it is real. There's part of my seminar, if you go back and look at it, where I cover off on what the symptoms of long COVID would be and how long they go on for.

But even just recently, I did see on the news on the television of people that are still suffering from effects of COVID from whatever they contracted back in March 2020.

I mean, if you look at the definition of disability, I think it's likely to fall within that definition where it is having an impairment on somebody, on their day-to-day living, which seems to be the position. And it seems to be particularly around this aspect of fatigue.

But I would assume as well that at this point, any employee, if you're talking 18 months, will have exhausted their sick leave entitlement, whether that is SSP or whether there has been a company sick pay scheme there. I think it's just about weighing up what the business can cope with at this point in relation to the absence of that employee.

If the business can manage and can continue on . . . Obviously, you'll have those other aspects in relation to holiday entitlement that will accrue while somebody is absent. That can be a burden on the business itself, the accrual of that holiday and the worry of holidays not being used, and then having to pay the holidays out, and things like that as well.

It is a tricky one to deal with, and there's no doubt that we're going to see more of that going forward. But I do think that it will be important at this point to be getting some clear medical evidence and really pushing medical evidence for a timeframe from whenever the employee can return to work.

Or look at those alternatives for the employee, to say, "Look, maybe you can't come back full time, but can you come back on a part-time basis? Are there aspects of the role that you're going to struggle with as a result of your inabilities at the minute? And can we look at maybe a new role for you, where maybe it's not as physical, maybe it's going to be a seated job in an office rather than being out in the yard or in the factory?" Look at all of those alternatives.

I think if you're getting to the point where there aren't alternatives, or there isn't anything further that can be done, and the medical evidence is clear that there's no real timeframe for the employee to return to work, I would have thought you're at the point then, at that stage certainly, of giving consideration to termination.

Christine: Yeah, and I think the important thing in those circumstances . . . When I was working with the Federation of Small Businesses, obviously, a lot of small firms, their reaction is always, "Well, we're tiny. There are only 10 of us. We can't redeploy". That is perfectly true and a legitimate answer, but the important thing is to document that thought process. Get it down in writing. You don't need to just have the thought. You need to prove the thought, which is what I was always reiterating.

So if there's nowhere else to go in the business, you need to document a management meeting where you're talking about that. You're going through the options and ruling them out one by one and giving those reasons. Just really make sure you've got your paperwork up to scratch.

I encountered that so many times. "Well, there are only three of us. How can I redeploy?" Let's write it down. Let's write down the thought process.

So I suppose what you're kind of saying is long COVID is a sickness like any other, but it probably does need to be ring-fenced with disabilities or even with the likes of maternity-related sicknesses. So you can't sort of start to trigger those normal things in the sickness policy. You just need to tread that a little bit more carefully. Would that be a good summing up?

Seamus: Yeah, absolutely. And I suppose it's the unknown at the minute. We could find in another six months that there's a proper definition for long COVID and that there is protection built around it in relation to absence and disability as well.

Look, I think I would lean heavily in terms of the medical evidence. I would ask the appropriate questions whenever you're sending the employee for Occupational Health.

And be aware that the employee has a right to see the letter that you send the Occupational Health. So don't be putting anything in the letter that you wouldn't want disclosed. But don't be afraid to ask those questions that are legitimate questions for the operation of the business. You should be asking for clear replies in relation to your questions that you've asked.

Christine: Brilliant. Thanks, Seamus. We've got a lot of questions on disability and stress. I think that is another aspect that a lot of people struggle with, and it is a tricky one.