An Employment Tribunal has provided the first reported decision on whether the symptoms of long COVID can amount to a disability for the purposes of the Equality Act 2010 (the 2010 Act) in Burke v Turning Point Scotland.
The respondent, Turning Point, employed the claimant, Mr Burke, as a caretaker since April 2001. The claimant tested positive for COVID-19 in November 2020 with mild symptoms. After isolating, Mr Burke began experiencing severe headaches and fatigue, and had to lie down after standing for long periods of time. He struggled to undertake daily household activities, or socialise. Mr Burke experienced a number of other symptoms including a loss of appetite, joint pain, difficulty sleeping and struggling to concentrate. His symptoms often improved, before worsening again. His daily activities continued to be affected by fatigue and sleep disruption.
Mr Burke was off work from November 2020 due to his symptoms. Although fit notes referred to the effects of long COVID and post-viral fatigue syndrome, two Occupational Health reports confirmed that he was able to return to work and stated that it was considered that the disability provisions in the 2010 Act were unlikely to apply. Despite the Occupational Health reports, Mr Burke did not return to work due to symptom relapses. The respondent subsequently dismissed Mr Burke in August 2021, specifically on the basis that he was too ill to return to work and the respondent could not see that changing.
Mr Burke brought claims for unfair dismissal and disability discrimination against the respondent following his dismissal.
The Tribunal’s decision
The Tribunal had to consider, as a preliminary issue, whether Mr Burke was disabled for the purposes of the Equality Act 2010 during the relevant period. Although accepting that Mr Burke had had a physical impairment, the respondent disputed that it amounted to a disability, principally on the basis of the length of time the respondent contended it had lasted.
The Tribunal had to decide amongst other things:
- The period for which Mr Burke had a physical impairment;
- Did the impairment have an adverse effect on his ability to carry out normal day-to-day activities and if so (i) was that effect substantial (i.e. more than minor or trivial) and (ii) long term. The Equality Act provides that an effect is long term “if it has lasted for at least 12 months or is likely to last for at least 12 months“.
The Tribunal concluded that he was disabled. It felt that Mr Burke did not exaggerate his symptoms and was suffering from a physical impairment in the form of post-viral fatigue syndrome as a result of contracting COVID-19. They accepted Mr Burke’s evidence that it had an adverse effect on his day-to-day activities and that the effect was more than minor or trivial. The Tribunal noted that as Mr Burke had already exhausted his sick pay entitlement, there was no incentive for him to remain off work instead of returning.
When deciding if the adverse effect was long term, the Tribunal had to consider the position, as at the date of the dismissal process (between July and August 2021), by which time Mr Burke had only been off for 9 months. However, the Tribunal had no difficulty in concluding, particularly in the light of the respondent’s reason for dismissal and conclusion that they could see no prospect of Mr Burke returning to work, that the adverse effect was likely to last until November 2021 (thus 12 months in total).
Impact of the decision
Whilst Mr Burke’s substantive claims have not yet been decided, the preliminary issue decision is the first to recognise long COVID as a disability under the Equality Act 2010.
The Tribunal applied the elements that the Act requires to be present in order for a claimant to be disabled were able to conclude, on the facts here, that long COVID can be a disability.
It should be noted that this is only a tribunal decision, which means that it is not binding on any other employment tribunal. It is probable, however, that, if the facts were similar, the outcome would be the same. This decision could therefore encourage further claims by employees who are suffering with long COVID symptoms as we come out of the pandemic and are having to adjust to the new ways of working and the lasting effects of the pandemic. Accordingly, employers should be aware that they are likely to have to make reasonable adjustments for those employees who are suffering with long COVID symptoms, in the same way as for other employees with a disability. The decision of the Tribunal should act as a reminder to all employers that they have a duty of care towards employees who are suffering with an illness or condition that affects their ability to carry out daily tasks. Employers should be mindful that not all illnesses are visible and, as we have previously discussed in our recent insight article, offering support to these employees will not only promote the happiness of their workforce, it will also assist with retaining employees.
If you would like to discuss any of the points in this article, please contact a member of our team.