In a recent case, an Employment Tribunal concluded that an employee with symptoms of Long Covid was disabled, as per the Equality Act 2010.
The Claimant in the case, Mr. Burke, was employed by the Respondent, Turning Point Scotland, as a Caretaker from April 2001. In November 2020, he tested positive for Covid 19 and initially his symptoms were mild. He isolated for a period of time, but then following his isolation he developed severe headaches and fatigue. After getting up in the morning, showering and dressing, Mr. Burke had to lie down to recover and he also struggled to stand for long periods. He was unable to undertake normal household activities, such as cooking, ironing and shopping, and experienced joint pain, loss of appetite, a reduced ability to concentrate and difficulty sleeping. Further, Mr. Burke felt unable to socialise. His symptoms were unpredictable and from time to time experienced improvement, only then to suffer fatigue and exhaustion yet again. In particular, his difficulty sleeping and ongoing fatigue continued to affect his day to day activities.
Mr. Burke remained off work from November 2020. Although his later Fit Notes referred to the effects of Long Covid and Post Viral Fatigue Syndrome, two Occupational Health Reports commissioned by Turning Point Scotland stated he was fit to return to work and that it was unlikely he was disabled, as per the Equality Act 2010. The symptoms of ongoing fatigue resulted in Mr. Burke not returning to work. He was dismissed in August 2021 on the ground of ill-health and then issued a number of claims, including for disability discrimination.
As a preliminary issue, Employment Judge Young had to determine whether Mr. Burke was disabled during the relevant period of time. It was concluded that he was disabled and that he was not exaggerating his symptoms. The physical impairment from which Mr. Burke was suffering was Post Viral Fatigue Syndrome, caused by Covid 19. Employment Judge Young also noted that there was no incentive for Mr. Burke to remain off work, as he had exhausted his sick pay entitlement.
Importantly, the physical impairment had an adverse effect on Mr. Burke’s ability to carry out normal day to day activities and this effect was more than minor or trivial, but was long-term, as it “could well” be that it would last for a period of twelve months from the dismissal date.
Take away for Employers
As time goes on, more and more cases relating to Covid 19 emerge and are being determined by the Employment Tribunals. Although each case will be decided on its individual facts, this preliminary Judgment sends a warning to employers that if an employee is suffering from symptoms of Long Covid, they may well be disabled as defined by the Equality Act and therefore the employer should act accordingly.
If you require guidance on this issue or have any other queries in relation to employment or HR law, please contact Jonathan Moreland by email at firstname.lastname@example.org or Sharney Randhawa at email@example.com or call them on 0191 3842441.