Long-COVID symptoms found to constitute a disability
An employment tribunal has determined that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010 (EqA 2010).I
In the case of Burke v Turning Point Scotland , Mr Burke was employed by Turning Point as a caretaker from April 2001. In November 2020, he tested positive for COVID-19. Initially, his symptoms were mild. However, after isolating, he developed severe headaches and fatigue. After waking, showering and dressing, he had to lie down to recover 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 difficulties sleeping. He also felt unable to socialise. The symptoms were unpredictable; he would experience improvement only to suffer from fatigue and exhaustion again. From January 2022, his health began to improve. However, sleep disruption and fatigue continued to affect his day-to-day activities.
Mr Burke remained off work from November 2020. Later fit notes referred to the effects of long COVID and post-viral fatigue syndrome. By contrast, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the EqA 2010 were unlikely to apply. However, relapses of his symptoms (in particular, fatigue) meant that he did not return to work. He was dismissed in August 2021 because of ill health and brought disability discrimination claims, among other claims.
As a preliminary issue, a tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was. It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The lack of particularisation within initial fit notes could be explained by the restrictions on in-person consultations at the time. His fluctuating symptoms were consistent with a June 2021 TUC report. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities. This effect was more than minor or trivial and long term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act). The tribunal noted that the employer’s own view was that there was no date when a return to work seemed likely.
This is a very important case and employer should take note. Employers are already obliged to follow strict processes when it comes to the management of ill health issues in the workplace and where an employee is suffering from a disability, there are increased obligations on an employer especially in the context of reasonable adjustments. If you are currently managing an issue involving an employee who is suffering from Long-COVID and you would like to discuss your obligations then please contact a member of the Employment Team on 01274 864999. We also penned a White Paper on this very subject in 2021- if you would like to read this and understand in more detail the implications for employers the link is here: Whitepaper : The Growing Impact of Long Covid – Howarths HR (howarths-uk.com)
Author: Charlotte Geesin, Legal Director at Howarths