In the case of Burke v Turning Point Scotland an Employment Tribunal in Scotland has determined that long Covid made a worker “disabled” for the purposes of the Equality Act 2010. While the decision is not binding on other Tribunal Judges, it shows that employers should carefully manage those diagnosed with or suspected to have long Covid.
The Equality Act 2010 defines disability as a “physical or mental impairment…[that] has a substantial and long-term adverse effect on [the worker’s] ability to carry out normal day-to-day activities”. “Substantial” means more than minor or trivial. An impairment is “long-term” if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.
The Claimant, Mr Burke, was a long-serving caretaker. He tested positive for Covid-19 in November 2020 and initially reported mild symptoms. However, after his isolation period, he developed severe headaches and fatigue. After walking, showering, and dressing, he would need to lie down to rest from fatigue and exhaustion and he struggled with standing for long periods. He was no longer able to engage in activities such as cooking meals, ironing or shopping. In addition to fatigue, he suffered from joint pain, a loss of appetite, and difficulties both concentrating and sleeping. This affected his socialising and family events. His symptoms were unpredictable and often he would improve only for his symptoms to again regress. He was absent from the date he tested positive and was dismissed in August 2021 having never returned to work.
Two occupational health reports found that he was fit to return to work and that it was unlikely that the provisions of the Equality Act 2010 would apply. Mr Burke did not return to work due to a relapse of his symptoms. He was dismissed on the grounds of capability and brought disability and age discrimination and unfair dismissal claims.
The Employment Tribunal found that Mr Burke had a physical impairment and accepted his evidence as to its symptoms. It noted that he had no incentive to remain absent from work as he was no longer receiving sick pay.
It was held that the impairment did have an effect on Mr Burke’s day-to-day activities and that the effect was substantial. The effect was also “long-term” because, at the date of the alleged discriminatory act, it could be said that the condition lasting for a year “could well happen”. The fact that the Respondent had acknowledged at the time of dismissal that there was uncertainty as to a prospective return to work date supported this finding.
Tips for employers
Employers should be alert to the possibility that employees with long Covid could be disabled.
Where concerns arise, employers should refer employees to occupational health to determine the prognosis and whether any reasonable adjustments are required.
A cautious employer may assume each instance of long Covid constitutes a disability and consider implementing reasonable adjustments such as reduced workload, change in working hours, or other types of flexible working. Employers should note that the symptoms of long Covid may vary in severity and cause intermittent short-term absences. Medical evidence should be obtained in these circumstances and the employee should not be subjected to any disciplinary action without first considering if long Covid is the underlying cause for such absences.
Acas has published guidance for employers in light of the growing impact of Covid in the workplace. It recommends that employers discuss with employees the potential impacts of long Covid as early as possible and to consider flexible working and reasonable adjustments. The guidance also confirms that the usual rules for sickness absence and sick pay apply when someone is absent due to long Covid. Employers should be aware of the symptoms of long Covid and alert to the possibility that an employee may be suffering from the illness undiagnosed. The Acas guidance sets out the symptoms of the illness in accordance with NHS guidance.
The TUC has called for long Covid to be recognised as a disability and occupational disease to give workers automatic access to legal protections and compensation. In light of the different range of symptoms suffered by individuals and the fluctuating severity of those symptoms, it is doubtful that long Covid could be recognised as an automatic or deemed disability in the way that cancer, HIV or MS is. Indeed, the Equality and Human Rights Commission recently confirmed their view that not all cases of long Covid would fall under the definition of disability in the Equality Act.
The Office for National Statistics has reported that over two million people are experiencing long Covid symptoms, with 71% reporting that these symptoms adversely affect their day-to-day activities. 20% or 398,000 reported that their ability to engage in day-to-day activities had been “limited a lot”. The prevalence of long Covid and impact on individuals’ daily activities cannot be ignored and employers will need to be alert to, and proactively manage, cases if the risk of Employment Tribunal claims is to be managed effectively.
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