What is Long Covid?
The National Institute for Health and Care Excellence (NICE) has defined ‘long Covid’ – as “signs and symptoms that develop during or after an infection consistent with Covid-19, which continue for more than 12 weeks and are not explained by an alternative diagnosis. It usually presents with clusters of symptoms, often overlapping, which can fluctuate and change over time and can affect any system in the body”.
What needs to be shown for a disability to meet the requirements under the Equality Act 2010?
Under Section 6 of the Equality Act 2010, it is outlines that a person has a ‘disability’ if they have (i) a physical or mental impairment and (ii) which has a ‘substantial’ and ‘long-term’ adverse effect on the ability to carry out normal day-to-day activities.
An employee suffering ‘long Covid’ symptoms could likely demonstrate a physical or mental impairment that impacts their ability to carry out ‘normal day-to-day activities’. For example, an employee suffering with breathlessness and dizziness may struggle to complete day-to-day activities such as concentrating or to walking or talking as easily as they could before.
What does the case law say?
The wide-ranging impact of long Covid meant that there was uncertainty as to whether it would be classed as a disability.
However, there has been some development and clarity on the matter following a recent landmark case in Burke v Turning Point Scotland (2021).
Burke v Turning Point Scotland (2021)
Facts
In this case, the employee Mr. Burke had been employed by the Respondent, Turning Point Scotland, since 2001. Mr. Burke worked as a caretaker. He tested positive for COVID-19 in November 2020 and his symptoms consisted of extreme fatigue, lack of mobility, joint pain, and severe headaches. His symptoms made it extremely difficult for him to carry out normal day to day activities such as cooking, ironing, and shopping.
Following his positive test in November 2020, Mr. Burke remained signed off work for a period of 9 months. Mr. Burke obtained sick-notes notes from his GP. However, the Respondent sought advice from Occupational Health on two separate occasions with the reports stating that Mr. Burke was fit for work and concluded that it was “unlikely” that Mr. Burke was a disabled person under the Equality Act. Mr. Burke was dismissal in August 2021 due to “ill-health”.
Tribunal’s decision
At the preliminary hearing, the Tribunal considered Mr. Burke’s symptoms during his time off work and decided that it did in fact amount to disability under the definition of the Equality Act 2010. The Tribunal considered the Trades Union Congress (TUC)[1] report when finding that long Covid was a “recognised difficulty” and noted that sufferers’ symptoms would become “worse on some days than others”.
The Tribunal held that although Mr. Burke’s symptoms had fluctuated, he had suffered from a physical impairment of extreme fatigue as a direct result of COVID-19, and that this impairment continued at the time of his dismissal in August 2021. The Tribunal held that this physical impairment had a substantial and long-term adverse effect on Mr. Burke’s ability to carry out normal day to day activities.
The Tribunal also found no reason as to why Mr. Burke would exaggerate or falsify his symptoms. Mr. Burke’s sick pay had run out, and there was no incentive to stay off sick.
The Tribunal were therefore convinced that Mr. Burke’s long Covid amounted to a disability under the Equality Act 2010.
The tribunal will now go on to consider Mr. Burke’s claims that his dismissal was unfair and that he has been discriminated against on the grounds of his disability.
What does this mean for employers?
Following this, there has been a lot of speculation as to how this judgement will be implemented in case law moving forward.
Although there has not been a final ruling, this case is a reminder to employers to ensure that they have up to date policies and procedures regarding sickness absences. Employers are also reminded to not assume that an employee who is suffering with long Covid, or any other long-term condition, is exaggerating. Employers will need to consider the impact of an employee’s condition and may wish to take legal advice before deciding to dismiss an employee, change their role, or restrict their duties on ill health grounds.
Due to the potential surge in claims relating to long Covid, it is extremely important that employers:
- Treat each employee who discloses that they have Covid or may potentially have long Covid carefully based on their symptoms.
- As part of any capability process, employers should engage with employees and consult with the employee about how they can be supported.
- Employers should also consider adjustments should be considered such as flexible working, reduced hours, longer breaks, working from home where the remit of an employee’s role allows for that and/or a reduction in workload and/or the physical demands associated with the job; doing so will also mitigate the risk of any high compensation claims.
To help those suffering from long Covid, several Post Covid Assessment Centres have been opened across England. People who may be suffering from long Covid can be referred to a centre for specific treatment depending on their symptoms. If an employee cannot work due to suffering long Covid, it may be helpful for them to try and attend a local centre during this time to see if their services can assist in the recovery – Coronavirus » Post-COVID syndrome (long COVID) (england.nhs.uk)
Vaishali Thakerar, Director & Head of Employment Law Team
Lawson West Solicitors, Leicester
If you are an employer and need assistance with disability issues then please contact Lawson West Solicitors. Contact Us and we will get in touch as soon as possible.
Alternatively, please contact us on Tel: 0116 212 1000 or 01858 445 480.
[1] Workers experiences of long covid a TUC report – Trades Union Congress (TUC)
