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The employment tribunal has determined that an employee was disabled for the purposes of the Equality Act 2010 (the Equality Act) while suffering from the effects of long COVID. Importantly, this ruling is not binding and certainly does not mean that every sufferer of long COVID is disabled, but it does serve as a reminder of some very important points which employers need to be aware of.
The background to the case
In the case of Burke v Turning Point Scotland, Mr Burke was employed by Turning Point as a caretaker. In November 2020, he tested positive for COVID-19. Initially, his symptoms were mild. However, he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover and struggled standing for long periods. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He could not undertake household activities, such as cooking, ironing and shopping. He also felt unable to socialise. From January 2022, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.
Mr Burke was signed off sick from work from November 2020. Later fit notes referred to the effects of long COVID and post-viral fatigue syndrome. However, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the Equality Act were unlikely to apply. However, relapses of his symptoms, particularly fatigue, meant that he did not return to work.
He was dismissed in August 2021 by Turning point because of ill health and subsequently brought various claims including disability discrimination.
The tribunal’s decision
The tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was.
The tribunal found that the physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial, and it was long term because it "could well" be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer's own view was that there was no date when a return to work seemed likely.
The tribunal considered that Mr Burke was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay.
What does this mean for employers?
The ruling is not binding and does not mean every long COVID sufferer will be disabled. Each case will turn on the facts and to this end it is notable that the symptoms of long COVID vary significantly from person to person. However, the case illustrates that the long term effects of COVID certainly can amount to a disability, and also serves as a useful reminder of a couple of important points to note:
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Conclusions in occupational health reports about whether an employee is disabled are not determinative – only the tribunal can make this finding – and should be treated cautiously as a result.
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The effects of a condition need not last for 12 months in order to be a disability. It is sufficient that they are likely to last for at least 12 months.
The Office for National Statistics has reported that as of 1 June 2022 an estimated two million people in the UK have long COVID. As such, there is likely to be a huge number of individuals in a similar boat to Mr Burke and employers should treat these cases with appropriate care.
If, as an employer, you have an employee who is reporting long COVID or COVID-related symptoms well after the initial infection, treat the case sensitively, look at each case individually and be prepared to consider whether you will need to make some reasonable adjustments.
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Lubna is an experienced employment solicitor who advises a wide range of businesses on their HR issues. Lubna also specialises in tribunal litigation.
