Is Long Covid a Disability?
Many people are suffering long-term effects after having covid. There have only been 2 Employment Tribunal (ET) decisions on this issue so far.
Burke
The first was Burke V Turning Point Scotland in May 2022. In that case, the Claimant was employed as a caretaker. He tested positive for Covid-19 in November 2020 and was off sick.
He developed severe headaches and fatigue and struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping. He experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulty sleeping.
He was ultimately dismissed on ill health capability grounds in August 2021 as the employer stated that he was too ill to work and there was no return-to-work date.
He brought claims for unfair dismissal and disability/age discrimination in the Tribunal.
At a preliminary hearing, the ET ruled that he was disabled under the Equality Act 2010, as he suffered from post viral fatigue syndrome caused by covid, which adversely affected his day-to-day activities. Whilst the seriousness of those symptoms varied over time, it was substantial.
Whilst the symptoms had only lasted for 9 months at the time of his dismissal, the ET found that his impairment was likely to last more than 12 months so as to satisfy the definition of disability. The ET followed the test that it “could well happen” that his impairment would have lasted until November 2021, relying on the employer’s dismissal letter in August 2021 that there was no return-to-work date at that time as evidence to support its findings.
Quinn
The second case was Quinn v Sense Scotland in August 2022. In that case, Mrs Quinn tested positive for Covid-19 on or around 11 July 2021 and she self-isolated. She recommenced working from home on 20 July 2021 and attended the office on 21 and 26 July 2021.
She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. She struggled with shopping and driving and stopped socialising and exercising.
On 27 July 2021, she was dismissed from her employment.
She was subsequently diagnosed with long covid in September 2021.
She brought a claim for disability discrimination.
At a preliminary hearing, the ET ruled that she was not disabled under the Equality Act 2010.
Whilst the ET accepted that the impairment had substantial adverse effects on her normal day to day activities, it stated that at the time of her dismissal, she had only had covid for 2 ½ weeks and was not diagnosed with long covid until 6 weeks later. Whilst someone with covid is at risk of developing long covid, the majority of people don’t develop long covid and so it could not be said that the risk of developing long covid at the time of her dismissal “could well happen”.
The Outcome
This highlights the difference between the 2 cases and the application of the test of what is likely to be deemed long term by the Tribunals.
Whilst these Judgments are not binding on other Tribunals, it is helpful guidance and can be referred to employers to assist in requests for adjustments, alongside the ACAS guidance.
Employment Solicitors
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If you’re experiencing issues in the workplace please contact us on 033 3344 6903 or simply email your request to [email protected].
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