Can long Covid be a disability?
29 June 2022
Covid 19 has been with us for a couple of years now, millions of people in the UK have caught it and thankfully, the vast majority have made a full recovery after suffering relatively mild symptoms. However, for some, the disease has been much more serious leading to a large number of deaths, and for others, long lasting effects, the so called ‘long Covid’.
In what is believed to be the first case on the issue, an Employment Tribunal was asked to determine whether long Covid can amount to a disability under the Equality Act 2010. In order for a person to be considered as being disabled under the legislation, they have to have a physical or mental impairment which has a substantial and long term effect on their ability to carry out normal day to day activities. For this purpose, long term means the condition has either lasted 12 months or more, or is likely to do so.
The case in question is Burke v Turning Point Scotland. Mr Burke, who was employed as a caretaker, contracted Covid in November 2020. His symptoms were mild, but he then started experiencing more severe symptoms including bad headaches, fatigue, loss of appetite, joint pain, and an inability to stand for long periods of time. He was unable to undertake normal household activities such as ironing or shopping. Mr Burke remained off work, and his fit notes from his doctor simply said long Covid and post viral fatigue syndrome. His employer asked for Occupational Health reports, and these said that he was fit to return to work and that his condition was unlikely to amount to a disability. Mr Burke was dismissed in August 2021 because of his continuing ill health.
Mr Burke brought a number of claims in the Employment Tribunal including for disability discrimination, and the Tribunal had to decide as a preliminary point whether he was disabled. The Tribunal considered the evidence of Mr Burke’s inability to carry out normal day to day activities to be credible and noted that when his employer dismissed him, they had stated that it appeared that there was no clear date when he would be fit to return to work. On this basis, the Tribunal concluded that at the time of Mr Burke’s dismissal in August 2021 which was the last of the discriminatory acts complained of, that it could well have been the case that his condition and the substantial effects of it would have lasted until November 2021. This meant that the substantial adverse effect was “long-term” as it was likely to have lasted for a period of 12 months, which began in November 2020 when Mr Burke started experiencing symptoms of long Covid.
The case will therefore proceed to a full hearing in due course to determine whether Mr Burke was in fact discriminated against because of his disability.
The case has been described as a ‘landmark’, but that is not really accurate. As with all disability cases, the question of whether a person is disabled will depend on whether, on the evidence before the Tribunal, their condition satisfies the definition. It certainly does not follow that all cases of long Covid will meet the definition. The case is also a reminder that the issue of whether a person is disabled is a question of law, and the fact that two Occupational Health reports indicated that they did not believe that Mr Burke was disabled was not conclusive. Employers would be wise to take legal advice on difficult issues such as those that arose in this case and we anticipate that there are likely to be more cases brought before the Employment Tribunal by employees who say that they have suffered from long Covid and have subsequently been dismissed or discriminated against.
If you are an employer dealing with employees who are suffering from long Covid, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].