Tribunal rules long COVID to be covered under the Equality act

An Employment Tribunal rules that long Covid sufferer was disabled under the Equality Act- what does this mean for employers?

In the recent case of Burke v Turning Point Scotland, the Scottish Employment Tribunal ruled that an individual suffering from long Covid was ‘disabled’ for the purposes of the Equality Act 2010 (‘Act’) and was therefore permitted to bring a disability discrimination claim against his former employer.
Mr Burke is the first person in the UK to successfully claim that long Covid is a disability. This does not mean that every long Covid sufferer will meet the legal definition of disability, as each case will depend on its own facts.

Facts of the case

Mr Burke was employed as a caretaker by Turning Point Scotland for about 20 years. In November 2020, he tested positive for Covid. Initially, his symptoms were mild. However, after isolating 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, loss of appetite and inability to concentrate and difficulties sleeping. He also felt unable to socialise.

His symptoms were unpredictable as on some days he felt better than on others. He obtained fit notes from his doctor throughout his absence which quoted ‘fatigue’, ‘after effects of long covid’ and ‘post viral fatigue syndrome’. Two occupational health reports were obtained by Turning Point which stated that he was fit to return to work and that the disability provisions of the Act were unlikely to apply.

However, relapses of his symptoms (in particular, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of ill health and he brought Tribunal claims against his former employer, including disability discrimination. Turning Point sought to have the disability discrimination claim struck out on the basis that his condition did not constitute a disability under the Act. A preliminary hearing was held to determine this point.

Was Mr Burke disabled under the Act?

A person is disabled under the Act if they suffer from a physical or mental impairment which has a substantial (i.e. more than minor or trivial) and long-term effect (has lasted or is likely to last at least 12 months) on their ability to carry out normal day-to-day activities.

Applying these principles to this case the tribunal found that:

• Mr Burke had a physical impairment (long Covid/ post-viral fatigue syndrome), and his fluctuating symptoms were consistent with a June 2021 TUC report regarding workers’ experiences of long Covid;
• His physical impairment had a substantial effect on his ability to carry out day-to-day activities;
• This effect was long-term because it ‘could well’ be that it would last for a period of 12 months when viewed from the dismissal date, which was the last alleged discriminatory act;
• He was not exaggerating his symptoms. There was no incentive for him to remain off work when he had exhausted sick pay;
• The lack of particularisation of symptoms within initial fit notes could be explained by the restrictions on in-person consultations at the time.

Key points for employers to take from this case:

• Be mindful that long Covid may amount to a disability;
•  Consider all medical evidence available. If there is any uncertainty, seek further medical advice from the employee’s GP or an occupational health adviser, along with legal advice as, although medical evidence is helpful in understanding an individual’s diagnosis and prognosis, it is not determinative of whether a person’s condition constitutes a disability, that is a legal question to be determined by the tribunal;
• Think about whether and, if so, what reasonable adjustments may be appropriate and consult with the employee on any proposed adjustments.

This article was written by Claire Berry, an employment solicitor at Price Bailey. If you have any questions on the points raised in this article or would like assistance, please fill out the form below.