After well over eighteen months of speculation, we have the first case of an Employment Tribunal finding that an individual suffering the effects of so-called ‘long covid’ is capable of meeting the definition of disability for the purposes of the Equality Act.
Employment Judge Young sitting in the Scottish Tribunals found that the Claimant in the case of Burke v Turning Point Scotland was disabled for the relevant period.
What is long covid?
When symptoms of covid persist beyond the usual period and into weeks and months, this may be considered ‘long covid’.
What is classed as a disability in employment law?
Under section 6 of the Equality Act 2010, a person is disabled if they have a ‘physical or mental impairment’ which has a long-lasting and substantial adverse effect on their ability to carry out normal day to day activities.
It is important to take into account that ‘substantial’ is defined in the Equality Act itself as meaning ‘more than minor or trivial’.
For the purposes of this test, ‘long term’ means that the effects have lasted or are likely to last at least 12 months or for the rest of the claimant’s life.
Is long covid a disability?
Mr Burke first tested positive in November 2020 and was absent from work until his dismissal in August 2021. The continuing absence was ultimately the reason for the Respondent’s decision to dismiss.
Initially, the Claimant had described his symptoms as “mild” and “flu like” but that these escalated to fatigue and exhaustion.
He gave examples of not having the energy to walk to get his newspaper, cook meals or perform household tasks. He also suffered joint pain and headaches which disrupted sleep and made him even more tired.
Fatigue was a consistent theme in the evidence; it was mentioned in medical records and fit notes throughout the period and referred to on several occasions as “post viral fatigue syndrome”. There were no other indicators from blood tests as to what might be causing this.
The Respondent did engage the services of an occupational health professional who engaged with the Claimant by phone.
The report indicated a phased return to work was possible and that Mr Burke was “unlikely” to meet the Equality Act definition of disabled.
A separate report reached similar conclusions in June 2021, shortly before the Respondent took the initial steps towards dismissal.
What did the tribunal find?
The Judge ultimately had to decide whether or not the Claimant’s own evidence was credible as the medical evidence was both broad and, at times, contradictory.
The Judge was satisfied that the evidence given by Mr Burke and his daughter was credible and was partly swayed by the fact that the Claimant ended up unemployed after June 2021 and not on benefits.
As well as this, the Claimant had been keen and taken steps to try and return to work but was medically unable to do so. There was no benefit to the Claimant in exaggerating his symptoms.
Is this the final ruling?
This was only a preliminary hearing on the issue of disability alone and it may well still be found that despite the Claimant being disabled the dismissal itself was fair, reasonable and not discriminatory.
A specialist employment solicitor’s view
While many cases concerning covid-19 will have already passed their deadline for submission, those concerning long covid may still be in the background of day to day management.”
What can employers learn from this?
Chris continues “At the moment, the employer has not been deemed to have done anything unlawful in this situation.
However, for employers who may have staff suffering from the lasting effects of the virus, the same rules apply as to any long term condition which is capable of meeting the Equality Act test
According to the Office of National Statistics, some 2 million people are reporting last effects of covid-19 and the vast majority of them also report those symptoms continue to affect their normal daily activities.”
The key takeaways
- Long covid may amount to a disability. This is not a case determining that everyone with symptoms will be disabled.
- Cases will always be judged on their own merits but the facts set out in this case will prove helpful in future decisions.
- Occupational health and GPs are not the final arbiter of whether an individual meets the Equality Act test. This is a legal question for the Tribunal to decide. (something we discussed in our employment panel here)
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