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When will long-COVID amount to a disability?

22 June 2022

In the case of Burke v Turning Point Scotland a Scottish Employment Tribunal found that an employee with long-COVID symptoms was disabled for the purposes of the Equality Act 2010.

Legal background

Under section 6 of the Equality Act 2010 ("the Act") a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to day-activities. The effect is long-term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected. 

Facts 

Mr Burke was employed by the Respondent in the role of caretaker/security from 23 April 2001 until his employment was terminated on 13 August 2021. The reason for the dismissal related to Mr Burke's continuing absence from work. 

Mr Burke contracted COVID-19 in November 2020 and was absent from work until his dismissal. Although mild at first and "flu like" over the isolation period, Mr Burke then developed severe headaches and symptoms of fatigue lasting several months. He stated that after "waking, showering and dressing", he would need to lie down to rest from fatigue and exhaustion and that he struggled standing for long periods. Mr Burke's sleep pattern was severely disrupted and he found the symptoms to be unpredictable in that he would have periods where he felt that he was improving but then would suffer from fatigue and exhaustion. This uncertainty led to feelings of anxiety. 

Mr Burke's fit notes referred to long-COVID and post-viral fatigue syndrome. Mr Burke was also referred to Occupational Health and a report issued in April 2021 stated that he was fit to return to work and that the provisions of the Act were unlikely to apply. A later Occupational Health report made similar findings. However due to the reoccurrence of his symptoms Mr Burke did not return to work. He was subsequently dismissed in August 2021 on the grounds of ill-health as a result of his continuing absence from work. Mr Burke brought various claims, including a number of disability discrimination claims under the Act. 

Preliminary hearing 

At a preliminary hearing the Employment Tribunal had to determine whether Mr Burke was disabled for the purposes of the Act. If found to be disabled Mr Burke could continue with his disability discrimination claims. The Tribunal concluded Mr Burke was disabled after an examination of each part of the definition under the Act. The question of whether Mr Burke had exaggerated his symptoms was considered but this was dismissed by the Tribunal and Mr Burke was found to be a credible witness.

The Tribunal accepted that Mr Burke's symptoms fluctuated and that there can be "good days and bad days" and periods when the symptoms are not as pronounced as other periods. The Tribunal also noted that there was no financial benefit to Mr Burke remaining off work from June 2021 as he had exhausted his sick pay. The Tribunal addressed the lack of detail in the early fit notes as due to the lack of face to face GP appointments at that time. 

The Tribunal concluded that Mr Burke had a physical impairment of post viral fatigue syndrome caused by COVID-19 and the impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities. On the question of whether the substantial adverse effect was long–term, the Tribunal found that it was as it "could well be" that it would last for a period of 12 months (until November 2021) when viewed from the last of the discriminatory acts - the dismissal date. 

The Employment Tribunal will now consider the substantive claims, including Mr Burke's disability discrimination claims. 

Comment 

It is unsurprising that an employee with long-COVID could be classed as disabled. Each case will be considered on its own facts and undoubtedly medical evidence will be key to any findings. As recently stated by the Equality and Human Rights Commission long-COVID is not a condition which is automatically a disability, rather each element of the disability definition under the Act will need to be considered. It is important to note that as this is a decision of the Employment Tribunal, not an appeal case, this case is non-binding. 

With around 2 million people across the UK suffering the symptoms of long-COVID we expect to see more cases. It is important for employers to consider the possibility that an employee suffering with long-COVID symptoms could be disabled and what reasonable adjustments could be made. 

If you need any assistance with regard to the issues raised in this update please do not hesitate to get in touch.

Further Reading