In the recent case of Burke v Turning Point Scotland, an employment tribunal ruled that an individual suffering from long-COVID was classed as disabled - in what appears to be one of the first decisions of its kind.

There has been a great deal of debate around whether long-COVID could be classed as a disability under the Equality Act 2010. This has increasingly been the case as we’ve become more aware of the prevalence of individuals suffering from it, and the significant impact that it can have on them.

As at May 2022, the ONS estimated that two million people in the UK were suffering from long-COVID symptoms. Confirmation that long-COVID may indeed qualify as a disability may lead to a sharp increase in the number of cases from those still suffering with symptoms and facing challenges at work as a result.

Facts of the case

Mr Burke first contracted COVID on 15 November 2020 and was then absent from work up to the point of his dismissal in August 2021.

Initially, he had very mild symptoms during the isolation period. However, when this ended, he reported severe headaches and symptoms of fatigue which had a knock-on impact on his ability to carry out daily activities and his fitness for work.

Mr Burke’s symptoms varied from day to day, and he hoped to return to work shortly after April 2021. But this did not materialise, and his symptoms persisted. He did not begin to feel better until January 2022 and was still reporting some fatigue and issues with his sleep patterns in April 2022.

During this time, Mr Burke consistently obtained fit notes citing long-COVID and post-viral fatigue syndrome. His employer, Turning Point Scotland, also obtained occupational health reports in April and June 2021. Both indicated that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to him.

Subsequently, Mr Burke was dismissed for reasons relating to his continuing absence from work. He brought claims against Turning Point including one for disability discrimination. His employer attempted to have his claim struck out on the grounds that Mr Burke was not disabled under the relevant legislation.

Disability Status under the Equality Act and the decision

Under the Equality Act, certain conditions such as cancer and HIV are “deemed disabilities” and an individual with any of these is automatically deemed to have a disability for the purposes of the Act.

For “non-deemed” conditions, the statutory test must be applied. This means that an individual must have a “physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.

Long-COVID is not a “deemed disability” and the Tribunal therefore had to make a decision on whether it fell within the statutory test in Mr Burke’s case. When considering Mr Burke’s condition, the Tribunal accepted that he did have a physical impairment - that being long COVID or post-viral fatigue syndrome - and that he was not exaggerating the symptoms, as his employer suggested. It found, given that his sick pay entitlement ceased on June 2021, there was no incentive for Mr Burke to remain off work. His symptoms were also consistent with the TUC report which states that symptoms can fluctuate daily.

When looking at the impact this had on Mr Burke’s ability to carry out normal day-to-day activities, it was noted that Mr Burke had difficulty showering and dressing; and could no longer cook, iron, or go shopping due to a lack of energy. He also reported an impact on his concentration and sleep pattern. The seriousness of the effects varied but overall appeared to be substantial i.e., more than minor or trivial.

Furthermore, it was considered that these effects could likely last for a period of 12 months or more. This was on the basis that, when considering the relevant period for the claim of 25 November 2020–13 August 2021 (the period between contracting COVID and dismissal), “it could well happen that they would subsist until November 2021”.

On that basis, the Tribunal found that the Mr Burke was disabled under the Act and allowed his claim to proceed.

What this means going forward

This case may now be relied upon by those with long-COVID to strengthen their own case when raising disability discrimination claims. However, this is only a decision of first instance and, as such, is not binding on other tribunals.

Each case will turn on its own facts. This is especially so given that long-COVID symptoms, and their severity, seems to vary greatly person-to-person.

Employers must continue to be mindful to ensure that they are avoiding discrimination risks arising from those with long-COVID. It is particularly important to bear in mind that employers are under a positive obligation to make “reasonable adjustments” for staff who are classed as disabled. For those with long-COVID, this could include measures such as longer rest breaks; less screen time; or alternative duties.

A final key point from this case is that, although occupational health reports are often useful and informative, they are not legally determinative of whether a person is disabled or not. They should therefore be treated with an element of caution in this regard.

Employers should seek to maintain a good dialogue with those suffering from long-COVID and ensure that they have up to date medical evidence. Good communication is key to understanding the impact long-COVID is having on an employee and any potential adjustments that may be required.

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