Employee with long COVID was disabled

Is long COVID a disability?

An Employment Tribunal has ruled that an employee suffering with symptoms of long COVID was disabled. He could therefore claim disability discrimination following his dismissal on grounds of ill-health.

Burke v Turning Point Scotland

Mr Burke was employed as a caretaker from April 2001 until his dismissal on 13 August 2021. He contracted COVID-19 on 15 November 2020. Although his symptoms were mild at first, he later developed severe headaches and symptoms of fatigue. This meant:

• He needed to lie down and rest after showering and dressing and struggled to stand for long periods
• He could no longer help out with cooking, shopping and ironing
• He struggled to concentrate and his sleep patterns were wrecked
• He did not feel well enough to socialise and attend important events and did not attend any Christmas celebrations in December 2020

His problems were exacerbated by joint pain in his arms, legs and shoulders, together with a loss of appetite. His symptoms were unpredictable and although his health began to improve from January 2022, sleep disruption and fatigue continued to affect his day to day activities.

Mr Burke remained on sick leave from 15 November 2020 until his dismissal. During this time he had regular telephone appointments with his GP and later fit notes referred to the effects of long COVID and post viral fatigue syndrome. In April 2021, his employer referred him to Occupational Health who reported that he was fit to return to work, suggesting a phased return.  Occupational Health also reported that he was unlikely to be disabled for the purposes of the Equality Act 2010. However, Mr Burke did not return to work as his extreme fatigue returned and he was dismissed on grounds of ill health.  

Mr Burke claimed unfair dismissal and disability discrimination. His employer argued that he was not disabled, arguing that he had exaggerated his symptoms and that his Fit Notes were based on what he had told his GP rather than on any informed medical examination.

Employment Tribunal’s decision

The Employment Tribunal disagreed. Under the statutory definition, a person is disabled if they 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. The Employment Tribunal considered that Mr Burke was not exaggerating his symptoms – the evidence he gave was credible and the symptoms he described were consistent with those identified in a TUC report of their members’ experience of long COVID. Although the Fit Notes issued by his GP did not particularise his symptoms, the tribunal considered this could be explained by the restrictions on in-person consultations at that time and was not evidence that the symptoms did not exist. It concluded that he was suffering from a physical impairment through to the time of his dismissal.

The tribunal went on to rule that the impairment had an adverse effect on his ability to carry out normal day to day activities. The effect was substantial (which means more than minor or trivial) and it was long-term as it could well last for at least 12 months.    

What does this mean?

People with long COVID may be disabled for the purposes of the Equality Act 2010 and so employers should bear this in mind when dealing with employees suffering from this condition. They may, for example, need to make reasonable adjustments to assist the employee to return to work. 

However, not everyone with long COVID will be disabled for these purposes. Indeed, this was only an employment tribunal decision and so is not binding in any event. Each case will turn on its own facts and will depend on the severity of the impairment’s impact on the person’s ability to carry out normal day to day activities and how long the effects are likely to last.

This case is also a useful reminder that although occupational health and other medical reports can help employers understand an employee’s diagnosis and prognosis, they cannot determine whether someone is disabled for the purposes of the Equality Act 2010.  That is a legal question that has to be determined  by the Employment tribunal applying the statutory test. Employers should therefore treat such reports with caution and not be lulled into a false sense of security.