Tue 28 Jun 2022

Employment Tribunal finds long Covid to be a disability

In what may be the first of many similar findings an employment tribunal decides that an employee suffering from long Covid was disabled in terms of the Equality Act.

Long Covid was first identified following the first wave of Covid-19 infections in 2020.  The latest data from the Office for National Statistics estimated two million people were experiencing self-reported long Covid symptoms as of 1 May 2022.  Of those 826,000 had been experiencing symptoms for more than a year, and 376,000 had been affected for over two years.  While the severity of long Covid can vary dramatically, 398,000 reported their ability to undertake day to day activities as "limited a lot".  The TUC recently called for long-Covid to be recognised as a disability. However, in May the Equalities and Human Rights Commission tweeted that "Without case law or scientific consensus, EHRC does not recommend that 'long Covid' be treated as a disability".

Case law is now appearing.  In Burke v Turning Point Scotland the claimant contracted Covid-19 in November 2020, suffering fairly mild symptoms.  However, he later suffered from extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches.  His employer was provided with fit notes giving varying reasons for his absence including fatigue, post-viral syndrome and after-effects of long Covid.  The claimant was seen by occupational health in April 2021 and June 2021.  Both reports said it was unlikely he was disabled.  However, he was unable to return to work due to the ongoing symptoms.  In August 2021 he was dismissed, with the employer acknowledging in the dismissal letter that the claimant remained too ill to return to work.  It also noted that there were no further adjustments that could be made and that there was no potential date that could be identified for a full return to work.

At a preliminary hearing the employment judge held that the claimant was disabled, and although the impact on his day-to-day activities had varied over time (with good days and bad days) overall there was a substantial and long-term adverse effect on his ability to undertake normal day to day activities, meeting the definition of a disabled person under the Equality Act 2010 ("the Act").  The case will now proceed to a full hearing of the substantive merits of the claimant's disability discrimination and unfair dismissal claims.

This case - which is a non-binding tribunal decision and very fact specific - highlights some of the difficulties of dealing with long Covid.  The fluctuating nature of the condition and the disparity of symptoms among sufferers makes it unlikely to ever be a "deemed disability" under the Act in the way that cancer, multiple sclerosis, blindness and a number of other conditions are.  Two occupational health reports in this case indicated that the employee was unlikely to be disabled, but employers need to consider the full picture including information gleaned from consultation with the affected employee and not unquestioningly accept occupational health advice.  Cases of this nature will turn on their own facts, so employers need to properly consider all of the information available to them to ensure they do not breach the terms of the Equality Act when dealing with affected employees.   

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice