Claimant with long covid found to be disabled for purposes of the Equality Act 2010

Tribunal decision confirms that symptoms of long covid are capable of meeting the definition of disability.

As my colleague Alacoque Marvin commented in her May article ONS statistics indicate some cases of “long Covid” will be a disability, employers are increasingly seeing staff self-report long Covid symptoms and we commented on the likelihood that long covid would be found to be a disability under the Equality Act 2010.

The definition of disability is set out at section 6 of the Equality Act:

    (1) A person (P) has a disability if:

(a)    P has a physical or mental impairment, and

(b)    The impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities.

“Substantial” means ‘more than minor or trivial’ and the effect of an impairment 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”.  

The medical understanding of this issue continues to develop, with those suffering effects after 12 weeks since contracting covid sometimes being referred to as suffering from ‘post-covid-19 syndrome’. Nonetheless, long covid is increasingly recognised as being an umbrella term for several symptoms including coughing, cognitive impairment, fatigue, breathlessness, anxiety and low mood.

The issue has started to appear as part of Employment Tribunal proceedings where claimants are seeking to bring claims of disability discrimination on the basis of suffering long covid symptoms.

Case: Mr T Burke -v- Turning Point Scotland (2022)

Mr Burke had worked for TPS as a caretaker/ security guard for nearly twenty years when he returned a positive covid test in November 2020. Mr Burke became absent from work and never returned before his employment was terminated by TPS in August 2021.

The symptoms were reportedly very mild at first, but developed into severe headaches and fatigue. Mr Burke reported finding it difficult to carry out simple activities, like taking a shower and dressing or household activities like cooking, ironing and shopping without needing to rest.

Subsequently, Mr Burke did not attend social events such as his uncle’s funeral or Christmas celebrations which was reportedly ‘very out of character for him.’  Mr Burke also found his symptoms of fatigue and exhaustion unpredictable in that they seemed to improve and then suddenly would come back.

Mr Burke secured fit notes for his absences which noted that he was fatigued. In June 2021 Mr Burke’s sick pay ceased and following a consultation and capability process, Mr Burke’s employment was terminated in August 2021. On dismissal, TPS advised it could not keep Mr Burke’s position open due to its limited resources as a charitable organisation and the “uncertainty around a potential return to work date”. Mr Burke was dismissed on ill health grounds.

Mr Burke subsequently brought claims against TPS for unfair dismissal and discrimination on the grounds of disability, amongst others. Due to the defence presented by TPS the Tribunal held a hearing to determine whether or not Mr Burke was disabled for the purposes of the Equality Act 2010 at the relevant time.

When considering the point, the Tribunal judge found that:

• Mr Burke’s symptoms met the definition of a physical impairment;
• The impairment had an adverse effect on Mr Burke’s ability to carry our normal day to day activities; and
• The effect was substantial and long-term

Therefore the Tribunal found Mr Burke’s symptoms met the definition of disability.

In reaching this conclusion the following evidence was particularly key to the findings:

• The witness evidence of Mr Burke and his daughter on the substantial adverse effect of long covid on the claimant was credible;
• The nature of Mr Burke’s symptoms and conditions meant it was difficult to predict how long the effect would last, but as both TPS and Mr Burke explained that they did not know when his symptoms would abate, then at the time his employment was terminated it ‘could well’ have lasted until the end of November 2021 and thus would have met the definition of ‘long term’.

Comment

The key takeaway confirmed in this case is that, as has been long suspected, whether or not long covid is a disability will depend on the effect of the symptoms on the individual.  As a first instance tribunal decision the outcome of this case is not binding on any other courts or tribunals. However, it does serve as a practical example of an Employment Tribunal applying the definition of ‘disability’ to the symptoms of someone who contracted covid and subsequently experienced protracted symptoms that have an effect on their ability to carry out day to day activities.

The case only reports on the finding of disability and it remains to be determined whether Mr Burke’s substantive claims (for unfair dismissal and discrimination) will succeed. Employers should ensure that they follow and can evidence that they have followed a fair procedure and that any action taken in regard to discipline or dismissal of employee reporting ‘long covid’ was necessary and proportionate in the circumstances. Likewise, when dealing with employees with potential disabilities, employers should look at making reasonable adjustments, including adjustments to the sickness and disciplinary or capability processes.

When making this judgment, employers will need to continue to consider both the needs of their organisation and the discriminatory impact on the individual. Where a decision is made to dismiss following long term absence, the reasons for that decision should be carefully documented and, as always, we would recommend that employers take specialist employment advice if they are faced with this kind of situation to best manage and assess the risks.