In June 2021, a Scottish Employment Tribunal was faced with the question of whether a gentleman who caught Covid-19 and went on to suffer with long Covid was disabled for the purposes of the Equality Act 2010 (“EqA”).
The EqA offers protection for those in employment against discrimination and other prohibited conduct on the basis of a protected characteristic. The protected characteristic of most relevance in these circumstances is a disability.
In law, a disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. An impairment will be considered to be long-term if it has lasted or is likely to last 12 months or more.
Last year, the Trade Union Congress called for long Covid to be recognised as a deemed disability in law, meaning that sufferers would be automatically protected (i.e. there would be no need for employers (or the Employment Tribunal in the event of a claim being brought) to consider the effect of the condition on a person’s ability to carry out normal day-to-day activities or its duration. To date, however, that proposal has not been taken any further.
Current scientific evidence suggests that the effect and longevity of long Covid vary significantly from person to person and therefore it is vital that each case is assessed on its own merits. However, the recent case of Burke v Turning Point Scotland goes some way to providing helpful clarification around this much-debated issue.
Mr Terence Burke was employed as a caretaker by Turning Point Scotland for 20 years, before being dismissed in August 2021 on grounds of capability.
In November 2020, Mr Burke and his wife contracted Covid-19. At first, Mr Burke’s symptoms were mild. However, he went on to develop severe headaches and fatigue. His symptoms meant he would:
- Need to lie down and rest from fatigue and exhaustion after walking, showering, and dressing;
- Be unable to perform usual household chores such as ironing, shopping, and cooking meals;
- Be unable to walk to his local shop to buy the newspaper;
- Experience joint pains, together with a loss of appetite, difficulties sleeping, and an inability to concentrate; and
- Be unable to attend social events including Christmas celebrations and participate in family Zoom calls.
As a result, Mr Burke was unable to return to work and was signed off sick from November 2020 until his dismissal in August 2021. During that period he submitted fit notes, which stated that he was suffering from ‘post-viral fatigue’ and at times mentioned long Covid.
The severity of Mr Burke’s symptoms was variable during his absence. Whilst some improvements in his condition was noted, he was still not able to return to work and the changeable nature of his condition caused Mr Burke anxiety.
Turning Point Scotland sought advice from Occupational Health regarding Mr Burke’s condition on two separate occasions. Both reports produced by Occupational Health concluded that it was “unlikely” that Mr Burke was a disabled person for the purposes of the EqA.
In August 2021, eight and half months after contracting Covid-19, Mr Burke was dismissed from his employment with Turning Point Scotland.
Scottish Employment Tribunal finding
Mr Burke went on to bring a number of claims against Turning Point Scotland, including disability discrimination and unfair dismissal. Turning Point Scotland sought to have Mr Burke’s disability discrimination claim struck out on the basis that his condition did not constitute a “disability” under the EqA. A preliminary hearing was held to determine the issue of whether Mr Burke was disabled.
At the preliminary hearing, the Scottish Employment Tribunal concluded that Mr Burke was disabled and could continue with his discrimination claim. In reaching its finding, the Scottish Employment Tribunal referred to a report by the Trade Union Congress and noted its finding that fatigue is the most common symptom of long Covid, although issues with concentration, joint pain, muscle pain, and headaches were also mentioned. The report also stated that around 29% of respondents experienced symptoms for 12 months or more and that symptoms varied over time, meaning symptoms were worse on some days compared to others.
What does this mean for employers?
Research from the Office for National Statistics shows that two million people were suffering symptoms of long Covid as of 1 May 2022.
Whilst the decision, in this case, is not binding and each case will need to be considered on its own merits, employers should certainly be alert to the possibility that employees suffering from long Covid could be considered to have a disability in law and be mindful not to unlawfully discriminate against, victimise or harass employees on that basis. If employers are unsure about whether a condition may amount to a disability, it would be best to err on the side of caution and manage it as such.
As above, employers are entitled to manage employee absence, however, this must be done carefully and sensitively.
As part of any capability process, employers should meaningfully engage with employees and ask the employee how they feel they can be supported and 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.
Further, it is particularly important that employers seek professional medical advice on the employee’s ability to fulfil their role, the likely duration of any absence, and any modifications which may assist an employee in their work or with a return to work. As evidenced in this case, whilst Occupational Health advice is helpful, it may be worthwhile seeking more specialist medical advice in cases of suspected long Covid as well as making a referral to Occupational Health given the complexities and unknowns around the condition.
This is very much an evolving area and it will be interesting to see whether this case leads to an increase in claims being brought by those who have been dismissed or feel they have been treated unfairly as a result of having long Covid.
How can we help?
If you require any advice or assistance in relation to the subjects discussed in this article or any other related matters, please do not hesitate to get in touch with Ella or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.contact us