In a recent decision, an Employment Tribunal has determined that an employee with symptoms of ‘long COVID’ was disabled. This meant that the individual was able to pursue claims for disability discrimination in connection with the termination of his employment on grounds of ill health.

Burke v Turning Point Scotland

Mr Burke was employed by Turning Point as a Caretaker from April 2001 up to the date of his dismissal in August 2021. In November 2020, he tested positive for COVID-19. After initially mild symptoms, Mr Burke suffered from severe headaches and fatigue which continued with fluctuating severity. Mr Burke remained on sick leave from November 2020 up to the date of his dismissal in August 2021. He produced fit notes from his GP during the absence period, the later of which referred to him suffering with the effects of long COVID and post-viral fatigue syndrome.

In contrast, Turning Point referred Mr Burke to Occupational Health in April 2021 who reported that he was fit to return to work, recommending a phased return. The report also specified that Mr Burke was unlikely to be considered a disabled person for the purposes of the Equality Act 2010. This opinion was then repeated in a later Occupational Health report in June 2021.

On 13 August 2021, Turning Point dismissed Mr Burke. The dismissal letter stated that, in Turning Point’s view, he remained too unwell to work, it appeared there was no potential date in the future that he would return to his duties and there were no adjustments that would make his return more likely. Mr Burke then presented, amongst other claims, a claim for disability discrimination, stating long COVID as the disability.

Tribunal Decision

In deciding whether Mr Burke’s long COVID could be considered a disability, the Tribunal referred to the statutory definition of “disability” contained within the Equality Act 2010.

The definition specifies that a mental or physical condition may amount to a disability where it has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. To satisfy the definition, the adverse effect of the condition must be more than minor or trivial and is considered “long-term” where it has lasted, or is likely to last, at least 12 months.

In Mr Burke’s case:

• the Tribunal was satisfied that Mr Burke was suffering from the physical impairment of long COVID. Although Turning Point disputed the genuineness of the condition and symptoms, the Tribunal was satisfied on the evidence that the symptoms existed.

• Mr Burke complained of the effects of his condition preventing him from walking to the local shop, helping with cooking and ironing, shopping, reading or following a TV programme for any length of time, disturbing his sleep and affecting his social life. The Tribunal were satisfied the effects, therefore, had an adverse effect on his ability to carry out normal day-to-day activities.

• the Tribunal was satisfied that the effects were more than minor or trivial and, therefore, could be considered substantial.

• the Tribunal considered that, considering the position as at the termination date, Mr Burke’s impairment could well have lasted for at least 12 months and could be considered “long-term”.

Mr Burke was, therefore, disabled for the purposes of the Equality Act 2010 during the period of the alleged discriminatory acts by virtue of his long COVID. He was, therefore, able to pursue claims for disability discrimination against Turning Point.

What can we learn from this?

Although in this case long COVID was held to be a disability, this does not mean every employee suffering with the condition will be considered disabled. Ultimately, each case will be determined on its own facts.

Where an employer is managing the absence of an employee with a condition that may meet the statutory definition, such as long COVID, consideration will need to be given as to whether the individual may be considered disabled and, as such, whether the duty to make reasonable adjustments will arise. Having an open discussion with the employee to consider these issues may also then assist in facilitating a return to work.

This case also serves as a reminder to employers to be cautious when relying on the opinion of an Occupational Health provider when assessing whether an employee may be considered disabled. Although these opinions can be particularly useful and can assist in considering reasonable adjustments for the employee, an Occupational Health opinion cannot conclusively decide whether an employee is disabled for the purposes of the Equality Act 2010 and this is ultimately a legal test.

With the number of positive COVID-19 cases continuing to increase in the UK over recent weeks, employers may find more absence-related issues arising.

If you would like to discuss any issues with managing sickness absences, or managing employees with potential disabilities, please get in touch on 01276 854 663 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.