Employment Tribunal Finds Employee with Long Covid Disabled Under Equality Act 2010

On 13 May 2022, we published a blog which considered whether Long Covid could amount to a disability under the Equality Act 2010. At that point, there appeared to be no reported cases on the issue.

In the recent case of Burke v Turning Point Scotland, the Employment Tribunal determined that Mr Burke, who was suffering from long COVID symptoms, was disabled within the meaning of section 6 of the Equality Act 2010.

What’s the definition of ‘disability’?

The term “disability” is defined as a “physical or mental impairment which has a substantial and long-term adverse effect” on the individual’s ability to carry out normal day-to-day activities. An impairment is deemed to be long-term if it has lasted (or is likely to last) at least 12 months. Some conditions are automatically deemed to be a disability, such as multiple sclerosis, HIV and cancer. Other physical or mental impairments must be assessed on a case by case basis.

The case details

Mr Burke was employed as a caretaker from April 2001. He tested positive for COVID-19 in November 2020 and went off sick. After suffering from only mild symptoms, he began to develop severe headaches and fatigue. He had to lie down to recover after carrying out normal day to day activities including showering and dressing. He was unable to carry out normal household activities including shopping and cooking. His ability to concentrate was also reduced. Whilst his health began to improve in January 2022, the fatigue and sleep-disruption continued to affect his ability to carry out these activities.

Mr Burke did not return to work. He submitted fit notes from his GP which referred to COVID and post-viral fatigue syndrome. The employer, Turning Point, instructed two Occupational Health reports which stated that he was fit to return to work and that the disability provisions of the Equality Act were not likely to be engaged. He was dismissed in August 2021 on grounds of capability due to ill health and subsequently brought claims of unfair dismissal, disability discrimination and age discrimination.

As a preliminary issue, the Employment Tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was. It considered that he was not exaggerating his symptoms and he brought his daughter along to provide evidence about how his symptoms affected his day-to-day life. The Tribunal found that he had a physical impairment (post-viral fatigue syndrome caused by COVID-19) and noted that there was no incentive for him to remain off work when he had exhausted sick pay.

The Tribunal looked to a report by the TUC on Long Covid and found that his symptoms were consistent with that. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities and the 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.

Whilst this tribunal decision is not binding on other tribunals, and each case will turn on its own facts based on the particular employee’s symptoms of Long Covid, it provides an interesting example of how a tribunal may approach this thorny question. 

What should employers do?

Some useful steps for employers to take to raise awareness and help avoid disability discrimination claims (including those potentially in relation to Long Covid) include:

  • Encouraging an open dialogue with employees regarding physical and mental health to understand whether there are any reasonable adjustments which can be made;
  • Ensuring that proper enquiry is undertaken (by obtaining appropriate and up to date medical information) during any capability proceedings; and
  • Implementing an Equal Opportunities Policy and training all staff in the organisation about equality and the legal protections which exist against discrimination.

Contact our Specialist Employment Team if you wish to discuss any aspect of this blog.

Katie Hendry, Solicitor: khe@bto.co.uk / 0141 221 8012 / Connect with Katie on LinkedIn