Long COVID deemed a disability in Tribunal Case

What is long COVID?

Long COVID is described as COVID symptoms (which can vary) that last for more than four weeks.

THE MR Burke V Turning Point Scotland EMPLOYMENT TRIBUNAL CASE

Mr Burke was a caretaker, working for Turning Point Scotland from April 2001. In November 2020, Mr Burke contracted COVID-19. Initially, Mr Burke suffered from flu-like symptoms but these developed into severe headaches and fatigue. The result was that walking, showering and dressing became very difficult and required Mr Burke to lie down from exhaustion. He also struggled to stand for long periods of time.

Other symptoms included:

• pains in his arms, legs and shoulders;
• loss of appetite; and
• problems concentrating and sleeping.

The result was that he was diagnosed with post-viral fatigue syndrome and was signed off sick for the following nine months.

During his sickness absence, Mr Burke attended an occupational health therapist meeting which produced a report in April 2021. The report concluded that he was medically fit to return to work on a phased approach. Further, that he would be unlikely to meet the standard of disabled for the purposes of the Equality Act 2010.

Mr Burke was eventually dismissed on the basis of ill-health. The basis being that there was nothing further Turning Point could do to aid his return to work and that there was uncertainty as to whether he would return on full duties or at all.

Mr Burke lodged claims for:

• unfair dismissal;
• discrimination arising from disability (long COVID);
• indirect discrimination; and
• failure to make reasonable adjustments.
  
  

The findings Of THE PRELIMINARY HEARING

What is important to note is that there has not been a judgment on this case. This means that it has not gone all the way to the final hearing and been determined. Instead, what we have, is a finding at a preliminary hearing. This finding is that Mr Burke’s long COVID did amount to a disability for the purposes of the Equality Act 2010.

WHAT THIS MEANS FOR EMPLOYERS

This is a landmark finding in that it is one of the first where long COVID has amounted to a disability for the purposes of the Equality Act 2010.

It is worthwhile noting that long COVID will not always be found to be a disability for the purposes of the Equality Act 2010. Additionally, this finding is not binding on other courts. Therefore, every case will turn on its own facts.

That being said, it is important to note that a recent ONS survey estimated that circa 1.8 million people are suffering with long COVID in the UK, of which 1.2 million are suffering adverse consequences to their day-to-day activities. Therefore, there is a real risk that Mr Burke’s claim may be one of many claims for disability discrimination, relying on long COVID. This is particularly important since discrimination claims do not have a cap on compensation, when successful.

WHAT YOUR ORGANISATION CAN DO TO AVOID DISCRIMINATION CLAIMS

1. Check your policies, consider whether they are up to date and cover the various ways discrimination can occur.
2. Ensure that, where there are suspected disabilities (of any kind), you get medical advice.
3. Consider whether reasonable adjustments may be necessary. For example:
   • regular breaks;
   • home or hybrid working;
   • flexibility in processes, such as sickness absence; and
   • offer support (recognising that people’s symptoms may differ),
     
     

For further assistance with any of the information contained within this article, please do not hesitate to contact the BRIDGE Employment Law team on 01904 949008, email us at enquires@bridgeehr.co.uk.