In the recent case of Burke v Turning Point Scotland (2021), the Employment Tribunal was asked to consider the pertinent question of whether long Covid symptoms suffered by one of its employees, Mr Burke, amounted to a disability under the definition in the Equality Act 2010.
Under the Equality Act, a person has a disability if they have “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect” on their “ability to carry out normal day-to-day activities".
In one of the first decisions on this topic post pandemic, the employment judge ruled that long Covid could amount to a disability under the Equality Act as this particular employee’s symptoms amounted to a substantial long term physical impairment (namely post viral fatigue syndrome) which had an adverse impact on his ability to carry out normal day to day activities.
The employee, Mr Burke, had been employed by Turning Point Scotland since 2001 as a caretaker. He tested positive for Covid-19 in November 2020. His symptoms thereafter fluctuated and included severe headaches, joint pain, lack of mobility, sleeplessness and extreme fatigue. Because of his symptoms he did not want to socialise or attend family gatherings. His symptoms also made it difficult for him to carry out normal daily tasks such as cooking, ironing and shopping.
After he tested positive in November 2020 and because of his ongoing symptoms, Mr Burke remained signed off work until August 2021 when he was dismissed by his employer for ‘ill health’ reasons. Mr Burke then brought claims against his employer in the Employment Tribunal, including a claim for disability discrimination. The Tribunal was asked to determine, as a preliminary issue, whether Mr Burke’s long Covid symptoms satisfied the definition of a disability under the Equality Act.
The tribunal’s decision
Even though Mr Burke’s symptoms fluctuated, the Tribunal held that he suffered from the physical impairment of post-viral fatigue syndrome, caused by Covid-19, and that he continued to suffer with this physical impairment as at the date of his dismissal in August 2021.
Further, the Tribunal determined that this was a physical impairment which had an adverse effect on his ability to carry out normal day to day activities, and that it was substantial (in that it was more than minor) and long term.
The Tribunal were therefore convinced that Mr Burke’s long Covid amounted to a disability under the Equality Act.
What this means for employers
Although the Tribunal has not yet determined whether Mr Burke was discriminated against, its decision here is significant for many reasons. With recent statistics estimating that over two million people in the UK are suffering from long Covid, we can now expect to see more disability claims by employees who consider they have been discriminated against because of their long Covid symptoms.
As the disability discrimination protection under the Equality Act is extensive, discrimination does not need to be direct or obvious. Protection extends to claims for indirect discrimination and discrimination because of something connected to a disability (although the employer will sometimes be able to justify such discrimination). It also requires employers to make reasonable adjustments to accommodate any disability (which could in some circumstances mean allowing more home-working, more breaks, etc.).
Although each case will very much turn on its own facts it is likely that other employees in similar situations will be able to persuade a tribunal that their long Covid amounts to a disability, especially as the symptoms suffered by Mr Burke were common among long Covid sufferers.
Probably the hardest part of the Equality Act definition of disability to satisfy will be the requirement that the condition is long term, as this usually means proving that it either has already lasted 12 months or was likely to last 12 months at the point when the discrimination took place. Even a condition which did not appear likely to last 12 months at the time of the discrimination but which has subsequently lasted 12 months will not usually qualify.
This case is a statutory reminder to employers not to assume that an employee who is suffering with long Covid, or any other long term condition, is merely exaggerating. Employers will need to consider the impact of an employee’s condition (and all available evidence) on a case by case basis and may wish to take legal advice before deciding to dismiss an employee, change their role, or restrict their duties on ill health grounds