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I have been diagnosed with long Covid and am struggling to do a full day at work. I have asked to do two morning shifts instead of one full day. I am only contracted to work one day a week. I have been asked to request it via a flexible working request. Is this correct for illness and if it is it will take up to three months to consider. What am I supposed to do in the meantime?
The courts have said that long Covid may be a disability for legal purposes. However, it is fact specific and will depend greatly on the nature of the condition and its impact on you personally.
A disability for employment law purposes is a 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. “Long term” means that the condition has or is likely to last for 12 months or more. To ascertain whether a condition is a disability often requires medical evidence or for example, advice from an occupational health provider.
If your condition is a disability and your employer is aware of it, they are under a legal duty to consider reasonable adjustments that may help you to work and overcome any disadvantage caused by your condition. It is worth bearing in mind that such adjustments are not unlimited in nature; they simply have to be reasonable and that will vary depending on the employer’s size, organisational structure, resources and the job itself. Often, employers will ask individuals to attend an occupational health examination so as to obtain some expert advice relating to the individual’s condition and their ability to work. They can then discuss that information and possible adjustments (if applicable) with the employee.
Flexible working requests can be a productive way for employers and employees to discuss a proposed change to the contracted working arrangements. They allow the parties to explore the proposal and how it might affect the team or organisation (whether positively or negatively). If the employer believes it cannot accommodate the original proposal, they can consider whether alternatives exist. In terms of timeframe, often employers move through the process promptly, but this does depend on the employer and the request made.
In your case, I suggest you consider whether your condition may be a disability for legal purposes. If you have received a formal diagnosis or information from a consultant, this may help this exercise. If you believe your condition constitutes a disability, I suggest you ask your employer for a meeting to discuss it. At the meeting provide them with any relevant medical information (for example, a consultant’s letter) and explain that you believe the condition may be a disability, how you have come to that conclusion, and that they are under a duty to make reasonable adjustments. Explain that you believe the proposed arrangement is a reasonable adjustment.
I suggest you also set out how the proposed arrangement would help the team and business more widely, as well as you, and whether the proposal is a permanent or temporary change to your contract.
Your employer is unlikely to make a decision there and then; they will need time to consider the information before they proceed. Although they may of course agree to your request at that point, it is also likely they will ask you to attend an occupational health examination. I recommend you agree to attend any such examination if requested. Equally, the employer may ask you to put this information into a formal flexible working request so that they can consider your condition as part of that process. Bear in mind that a flexible working request can only be rejected for very limited reasons, and does give you the opportunity to appeal if it is rejected.
In addition, if you believe that your condition is a disability for legal purposes, you could raise a grievance if the employer is failing to make reasonable adjustments. Legal advice should be sought if the employer does not engage in a meaningful way with you about this matter, or you are unhappy with their approach.
If, however, you conclude your condition is not a disability for legal purposes, then the employer is entitled to deal with it as a flexible working request. I recommend that you do that promptly, being frank about how the proposal could help the team and you, and ask the employer to deal with the request without delay. You could also ask your manager to trial the proposed arrangement until the flexible working process is completed, but bear in mind they are not obliged to do so.
*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.