In one of the first cases to have reached a hearing, an employment tribunal has determined that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010. By way of reminder, a disability for the purposes of the Equality Act is “if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.”
In the case of Burke v Turning Point Scotland (2022), Mr Burke was employed as a caretaker from 2001. In November 2020, Mr Burke tested positive for coronavirus (COVID-19), initially his symptoms were mild. However after the period of isolation he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover and struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He also felt unable to socialise. Mr Burke’s symptoms were unpredictable; he would start to experience improvement only to suffer from fatigue and exhaustion again. From January 2022, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.
Later fit notes made reference to “long COVID”, which was in contrast to earlier Occupational Health reports which stated that Mr Burke was fit to return to work and was unlikely to be disabled for the purpose of the Equality Act. Mr Burke remained off work from November 2020 and due to relapses of his symptoms, he did not return to work. He was dismissed in August 2021 because of ill health and subsequently brought disability discrimination claims, among other claims.
In reaching its decision that Mr Burke was disabled during the relevant period, the tribunal concluded that Mr Burke had no incentive to stay off sick and was not exaggerating his symptoms, as he had exhausted his sick pay. He had a physical impairment (Post-viral fatigue syndrome caused by COVID-19). It also concluded that the lack of particularisation in the initial occupational health reports is likely due to the lack of in person consultations at the time. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial, and long term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act).
Whilst this is one of the first cases in which the question of long COVID amounting to a disability has been determined by an employment tribunal, it is likely that more cases will follow as the awareness of long COVID increases and the tribunals start to make their way through the backlog of cases. Employers should ensure they obtain appropriate medical advice and make any reasonable adjustments where long COVID is likely to be a disability under the Equality Act. Each case will turn on its own merits and should be dealt with accordingly. If you do have any questions or are dealing with an employee with long COVID symptoms and need further advice please do get in touch.
Published 22nd June 2022
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